1.1 In these Conditions, the following definitions and rules of interpretation apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
CDPA: the Copyright, Designs and Patents Act 1988.
Conditions: these terms and conditions as may be amended from time to time.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Contract Documents: any documentation which is agreed by the parties to form part of the Contract. This includes the Proposal, the form of acceptance of the offer (in accordance with clause 2.2) or form of counter-offer (in accordance with clause 2.3) as applicable, any correspondence between the Supplier and the Customer setting out any specifications in relation to the Delivery Materials, and these Conditions themselves.
Customer: the person or firm who purchases the Services from the Supplier.
Delivery Materials: the videographic, artistic works or other material forming the subject matter of the Services which are supplied to the Customer under the Contract.
Fee: the fee specified in the Proposal.
Force Majeure Event: has the meaning given to it in clause 11.1.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, information (including know-how), and all other rights of a similar nature, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Key Personnel: the person or persons specified in the Proposal or as notified from time to time from whom the Supplier will only accept instructions.
Production Schedule: any projected dates, times and locations for the preparation, production and post-production of the videographic material, as set out in the Proposal or as otherwise agreed in writing between the parties.
Proposal: the Supplier’s written quotation setting out the scope of the Supplier’s work with a specification of the Delivery Materials, including a description of the proposed content, developed and agreed in a briefing between the parties before entering into the Contract.
Services: the services to be provided in accordance with the Proposal.
Supplier: Fat Free Media Limited, registered in England and Wales (CRN: 08457900).
1.2 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.3 a reference to a party includes its Key Personnel, successors or permitted assigns;
1.4 a reference to a statute or statutory provision is a reference to it as amended, extended, re-enacted or replaced and shall include all subordinate legislation made from time to time under it;
1.5 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.6 a reference to writing or written includes e-mails.
BASIS OF CONTRACT
2.1 The Proposal constitutes an offer by the Supplier to supply the Delivery Materials in accordance with these Conditions and the Contract includes all Contract Documents. Each Proposal shall be the subject of a separate Contract.
2.2 The Proposal shall be deemed to be accepted when the Customer instructs the Supplier in any manner, whether in writing, orally or by conduct, to provide the Delivery Materials, at which point the Contract shall come into force.
2.3 If any purported acceptance of the Proposal by the Customer is in any way at variance with the terms of the original Proposal then this will not be considered to be an acceptance of the Supplier’s offer and will instead constitute a counter-offer, which the Supplier will not be deemed to accept unless and until the Supplier confirms acceptance to the Customer in writing, at which point the Contract shall come into force.
2.4 Once the Customer has accepted the Proposal or made a counter-offer, the Customer cannot withdraw or vary it without the Supplier’s express prior written consent.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions, illustrations or descriptions of the Delivery Materials contained in any material issued by the Supplier that is issued or published for advertising or promotional purposes shall not form part of the Contract or have any contractual force.
2.7 In the event of any inconsistency or discrepancy between any of the Contract Documents then they shall prevail in the following order of priority:
2.7.1 any document which the parties intend to be legally binding, including any correspondence between the parties which may set out further specifications or clarifications on the terms set out in the Contract;
2.7.2 the Proposal or (if applicable) the counter-offer;
2.7.3 acceptance of the Proposal or (if applicable) acceptance of the counter-offer; and
2.7.4 these Conditions.
3.1 The Supplier shall provide the Delivery Materials to the Customer in accordance with the Proposal and the Production Schedule in all material respects. However, the Supplier reserves the right to make any changes to the Delivery Materials which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Delivery Materials. Any dates quoted for performance of the Services shall be estimates only and time shall not be of the essence for the performance of the Services.
3.2 The Supplier warrants that the Services will be provided using reasonable care and skill.
3.3 No variations shall be made to the Contract without the Supplier’s express prior written consent, notwithstanding any minor amendments made under clause 3.4.
3.4 The Supplier shall in its discretion offer the Customer two opportunities to have minor changes made to the Delivery Materials at the script, storyboard and post-production stages. The Supplier reserves the right to charge to the Customer additional reasonable charges to implement any requested changes by the Customer which are not minor or do not conform with previously signed off concepts.
4.1 The parties agree to attend review meetings from time to time in order to consult in good faith with each other over the editorial content and artistic direction of the Delivery Materials. The Customer shall attend and actively participate in all review meetings and submit any feedback requested by the Supplier within a reasonable amount of time following such meeting.
4.2 The Key Personnel shall:
4.2.1 have the right on behalf of the Customer to accept as satisfactory any story outlines, scripts, voices, storyboards, design or music relating to the Delivery Materials (Relevant Information) which are proposed to it by the Supplier from time to time;
4.2.2 provide notice in writing of its acceptance or non-acceptance of the Relevant Information proposed pursuant to clause 4.2.1 within 5 Business Days from its date of receipt, provided that if no such notice is given the Customer will be deemed to have accepted as satisfactory the Relevant Information on the expiry of 5 Business Days from its date of receipt; and
4.2.3 be available to provide hands-on assistance upon reasonable request during filming.
4.3 The Supplier will be bound by any instruction provided by Key Personnel unless otherwise notified by the Customer.
4.4 For the avoidance of doubt, the Supplier shall not be liable for any defect in the design, quality or performance of the Delivery Materials if the Customer does not follow the Supplier’s recommended course of action in relation to any aspect of the Delivery Materials, in particular the Supplier’s editorial approach, if the Supplier proceeds against its own advice based on any instructions given by the Customer, whether orally or in writing, or if the Customer alters such Delivery Materials without the Supplier’s written consent.
4.5 Subject to clause 3.4, the Customer shall be responsible for any costs associated with any changes to the Contract or variations to the Proposal. This includes any changes necessitated by inaccurate or misleading information provided by the Customer, any costs resulting from the failure by the Customer to obtain any consent necessary from any third party or employee in the delivery of the Services, including inaccurate technical direction or requirements imposed by the Customer during production, or the failure by the Customer to comply with any of its obligations contained within clause 5.1.
5.1 The Customer shall:
5.1.1 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises and other facilities at no expense to the Supplier as reasonably required to provide the Services and where necessary give the Supplier access to the Customer’s personnel and instruct such personnel to assist the Supplier wherever possible to comply with the Supplier’s reasonable requests in the supply of the Delivery Materials;
5.1.2 prepare the Customer’s premises or any other location or buildings specified in the Proposal for the supply of the Services, ensuring such premises are safe and any required insurance is obtained, and inform all employees, agents and guests at its premises of the proposed filming and obtain relevant release forms duly signed by all such persons;
5.1.3 provide the Supplier with such information, materials and equipment as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects; and
5.1.4 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the performance of the Services are to start and provide access to its digital information, graphics and website and such other materials and media as may be agreed between the parties for use in the Delivery Materials, including submission of the appropriate brand assets such as font and brand guidelines, to the Supplier within such time as may be agreed between the parties or (if no time is specified) a reasonable time prior to the commencement of the Services.
5.2 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation or to do so by the time specified in the Contract (Customer Default), the Supplier shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Customer remedies the Customer Default, the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5, and the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
CHARGES AND PAYMENT
6.1 The Customer shall in consideration of the provision of the Delivery Materials and all rights granted to the Customer under the Contract, pay to the Supplier the following proportions of the Fee:
6.1.1 50% of the Fee on approval of the Proposal (Initial Invoice); and
6.1.2 50% of the Fee on final approval of the finished Delivery Materials (Final Invoice), such approval to be given in accordance with the mechanics specified in the Proposal, unless an alternative payment structure is specified in the Proposal, in which case such payment structure will take precedence over these Conditions.
6.2 Unless the Supplier notifies the Customer otherwise, the Customer must pay the Initial Invoice on entering into the Contract. The Final Invoice and any subsequent invoices submitted to the Customer by the Supplier must be paid within 30 days of the date of the invoice. Each invoice must be paid in full and in cleared funds to the bank account nominated in writing by the Supplier. Time for payment shall be of the essence of the Contract.
6.3 The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals the Supplier engages in connection with the Contract including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and any materials required by the Supplier for the performance of the Services.
6.4 The Customer shall be liable to reimburse the Supplier on demand for any applicable usage fees paid by the Supplier for any actors used as part of the Services for a specified amount of time (Usage Period). The Supplier will take reasonable steps to ensure that the usage fee and Usage Period is agreed with the Customer prior to the engagement of any actor. For the avoidance of doubt, the Customer shall be solely liable to pay any outstanding or additional usage fees incurred after the expiry of the Usage Period to any actors engaged under this clause 6.5.
6.5 The Supplier reserves the right to increase the price of the Delivery Materials, by giving notice to the Customer at any time before completion of the provision of the Services, to reflect any increase in the cost to the Supplier of supplying the Delivery Materials that is due to any factor beyond the Supplier’s control, including foreign exchange fluctuations, increases in taxes and duties, and any increases in labour, materials and other manufacturing costs.
6.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.7 If the Customer becomes subject to any of the events listed in clause 10.3, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to make any payment due to the Supplier, the Supplier reserves the right to cease to provide the Customer with Delivery Materials until such payment has been made in cleared funds and to claim interest due on the late payment in accordance with clause 6.6.
6.8 In the event of a bona fide dispute as to the sums due to the Supplier under the Contract, the Customer shall pay any undisputed part of the payment due to the Supplier pending resolution of the dispute. This clause applies without limiting any other remedy the Supplier may have under the Contract.
6.9 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to the Supplier by the Customer against any amount payable by the Supplier to the Customer.
7.1 Subject to clause 7.3 and 7.4, upon full and final payment of all sums due to the Supplier by the Customer, the Supplier hereby grants and assigns to the Customer absolutely:
7.1.1 the entire copyright throughout the world in all media whether now known or hereafter developed for the full period of copyright and all renewals, revivals, reversions and extensions thereof (and thereafter, in so far as it is able, in perpetuity) including so called rental and lending rights and, to the extent relevant, by way of present assignment of future copyright; and
7.1.2 all other rights of the Supplier, including all consents under Part II of the CDPA in the Delivery Materials, to enable the Customer to make the fullest use of the Delivery Materials.
7.2 The Supplier irrevocably and unconditionally waives all rights to which it is entitled pursuant to Sections 77, 80 and 85 of the CPDA and any other moral rights provided for under the laws now or in future in force in any part of the world in respect of the inclusion and exploitation by the Customer or its successors, licensees and assignees of the Delivery Materials.
7.3 The assignment contained in clause 7.1 excludes any stock footage or any other images, graphics or materials obtained from a third party which is used in any way in the production of the Delivery Materials. The Supplier shall use reasonable endeavours to procure a licence for the Customer to use any such materials which are incorporated in the Delivery Materials to enable it to use and enjoy the Delivery Materials as set out in the Contract. The Customer acknowledges that it is not able to use such materials for any other purpose other than that for which it was originally licenced to the Customer, without first obtaining a separate licence to enable it to do so.
7.4 The assignment contained in clause 7.1 excludes the Supplier’s working project files which shall only be made available to the Customer with the Supplier’s prior written consent. The Supplier may withhold its consent under this clause 7.4 and is not required to give to the Customer its reasons for doing so. The Supplier may also charge to the Customer additional charges as it sees fit as a condition of giving its consent under this clause 7.4.
7.5 The Customer agrees that the Supplier may use the Customer’s name, Intellectual Property Rights and the Delivery Materials to the extent necessary for the purpose of providing the Services and also for the purposes of the Supplier’s promotional materials in accordance with clause 7.6. The Customer warrants that no such use shall infringe the rights of any third party.
7.6 The Supplier shall have the non-exclusive right in perpetuity to use all or any part of the Delivery Materials for any promotional or marketing purposes as it may require from time to time.
8.1 Each party (Receiving Party) shall keep in strict confidence all information, including technical or commercial know-how, specifications, inventions, processes or initiatives of whatever kind (Confidential Information), relating to the other party (Disclosing Party), its representatives, employees, agents or subcontractors (Representatives), which comes to the attention of the Receiving Party in any way as a result of the Supplier and the Customer entering into the Contract.
8.2 The Receiving Party shall only disclose Confidential Information to its Representatives who need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall use reasonable endeavours to ensure that such Representatives comply with the obligations set out in this clause 8 as though they were a party to the Contract.
8.3 The Receiving Party may also disclose such of the Disclosing Party’s Confidential Information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
8.4 For the avoidance of doubt, information is not Confidential Information if it (i) is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Receiving Party or its Representatives in breach of the Contract, (ii) it was, is, or becomes available to the Receiving Party on a non-confidential basis from a person who, to the Receiving Party’s knowledge, is not under any confidentiality obligation in respect of that information, (iii) it was in the possession of the Receiving Party and at its free disposal before the information was obtained by the Receiving Party, (iv) it is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party, or (v) the parties to the Contract agree in writing that the information is not confidential or is required to be disclosed by law, including pursuant to the order of any Court or tribunal of competent jurisdiction.
LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for death or personal injury caused by the Supplier’s negligence, fraud or fraudulent misrepresentation or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.
9.2 Subject to clause 9.1:
9.2.1 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, business, revenue, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) arising under or in connection with the Contract even if such loss was reasonably foreseeable or the Supplier had been advised of the possibility of the Customer incurring it;
9.2.2 the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the supply of any Delivery Materials, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the price paid for those Delivery Materials.
10.1 Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than 1 months’ notice. In the event of termination by the Supplier under this clause 10.1, the Supplier at its absolute discretion may refund to the Customer any fees, in whole or in part, already paid to the Supplier.
10.2 In the event of termination by the Customer under clause 10.1, the Supplier reserves the right to invoice to the Customer a reasonable fee for the work already completed prior to termination.
10.3 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving notice to the other party if the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice to do so; if the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts; if the other party (being an individual) is the subject of a bankruptcy petition or order; if the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability adequately to fulfil its obligations under the Contract has been placed in jeopardy; if the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation, or if any event analogous to any of the above occurs to any other party in any other jurisdiction.
10.4 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
10.5 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of its outstanding unpaid invoices and interest.
11.1 For the purposes of this Contract, Force Majeure Event means an event or circumstance beyond the reasonable control of the party affected by it.
11.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. If the Force Majeure Event prevents the Supplier from providing any of the Delivery Materials for a continuous period of more than 42 days, it shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving notice to the Customer.
12.1 The Supplier will, for a period of 3 months following the final approval of the Delivery Materials, preserve and retain all material data and footage relating to the Delivery Materials (Post-Approval Period).
12.2 The Supplier will give notice to the Customer 15 Business Days prior to the expiry of the Post-Approval Period that its obligation to retain materials in accordance with clause 12.1 is to come to an end and the Supplier will specify the date on which the Post-Approval Period is to expire. The Customer should then inform the Supplier before that expiry date how the Supplier should proceed in handling the data relating to the Delivery Materials and in particular whether the Supplier should:
12.2.1 transfer such data and footage onto a storage device to be provided to the Customer, for a reasonable fee within a reasonable amount of time following the Post-Approval Period, containing (as may be applicable)
18.104.22.168 master copies of the final version of the Delivery Materials in the highest resolution digital format available to the Supplier;
22.214.171.124 all source material captured on camera if the Delivery Materials relate to a film project; and
126.96.36.199 all artwork produced if the Delivery Materials relate to an animation;
12.2.2 keep all relevant data within the Supplier’s archives until instructed otherwise by the Customer, subject to payment by the Customer of a reasonable annual fee for doing so. For the avoidance of doubt, such an annual fee would cover the costs of the hard-drives required, back-ups for the data and quarterly data health checks; or
12.2.3 proceed to handle the materials in such other manner as is agreed between the parties.
WARRANTY AND INDEMNITY
13.1 The Customer hereby warrants, represents and undertakes to the Supplier that:
13.1.1 it is fully entitled to enter into and perform this agreement; and
13.1.2 it shall either own, or have obtained and paid for licences to use, all materials provided to the Supplier by the Customer in connection with the production of the Delivery Materials.
13.2 The Customer shall indemnify the Supplier and keep the Supplier fully and effectively indemnified against all actions, costs, demands, liabilities, losses, claims and expenses of whatsoever kind or nature (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) arising from any actual or threatened breach or non-performance of any of the warranties, representations, undertakings or obligations on the Customer’s part contained in this agreement.
13.3 The Customer undertakes to defend the Supplier from and against any claim or action that the use of any materials provided by the Customer for the purposes of this agreement infringes the Intellectual Property Rights of a third party (Claim) and shall fully indemnify and hold the Supplier harmless from and against any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against the Supplier as a result of, or in connection with, any such Claim.
13.4 If any third party makes a Claim, or notifies intention to make a Claim against the Supplier, the Supplier shall use its best endeavours to give the Customer notice of such claim as soon as reasonably practicable and shall not make any admission of liability, agreement or compromise in relation to the Claim without the Customer’s prior written consent (such consent not to be unreasonably withheld, delayed or made subject to unreasonable condition).
14.1 The Customer agrees that during the term of the Contract and for an additional period of 1 year after termination, the Customer shall not directly or indirectly canvas with a view to offering or providing employment to, offering to contract with or enticing to leave any employee of or contractor to the Supplier engaged in the performance of the Contract without the prior written consent of the Supplier.
15.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or its principal place of business or such other address as that party may have specified to the other party in writing, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier or e-mail, unless agreed otherwise in writing signed by the party or its authorised representative.
15.2 A notice or other communication shall be deemed to have been received if delivered personally, when left at the address referred to in clause 15.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed or if sent by email, at 9.00 am on the next Business Day after transmission.
15.3 This clause shall not apply to the service of any proceedings or other documents in any legal action.
16.1 A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.2 Nothing in the Contract or in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
16.3 A person who is not a party to the Contract shall not have any rights to enforce its terms.
16.4 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
16.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by the Supplier or on the Supplier’s behalf which is not expressly set out in the Contract. No variation of the Contract shall be effective unless it is agreed in writing and signed by an authorised representative of each of the parties, save that the Supplier reserves the right to update these Conditions as it sees fit from time to time.
16.6 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
16.7 Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).