Definitions and Interpretation
In this Agreement, unless the context otherwise requires:
|“Appointment”||means, the appointment of the Company in accordance with Clause 1;|
|“Board”||means, the board of directors of the Client or such other persons as the board may nominate from time to time under this Agreement;|
|“the Business”||means, the business referred to above, as carried on by the Client from time to time during the period of this Agreement;|
|“Business Day”||means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in London;|
|“Business Hours”||9am to 5pm;|
|The “Company”: Make it Media Limited (Trading as Business Video Experts), a company incorporated in England and Wales under No. 08067542 whose registered office is at Imogen House, 37 Moorbridge Road, Bingham, Nottingham, NG13 8GG;|
The person, business or organisation that agrees to employ the services of the Company.
means, date of commencement on the invoice
|means, information in respect of an individual or company relating to:|
|“Deliverables”||the finished product, in most cases a video production, delivered under licence by the Company to the Client for use in accordance with the project scope outlined in the invoice.|
|“Facilities”||means, any facilities the Company has access to and provided for by the Client where appropriate and referred to in Sub-Clause 7.2;|
|“Fees”||means, the amount to be paid by the Client to the Company in consideration of the invoice for Services provided;|
|“Holding Company”||has the meaning given to this expression by Sections 736 and 737 of the Companies Act 1985;|
|“Intellectual Property”||means, any patent, registered or unregistered trade mark or service mark, copyright, registered design or mark, any application for any of the foregoing, any right in respect of technical or commercial information and any other form of protection;|
|“Locations and Premises”||means, the locations and premises as set required by any Production Stage.|
|“Operatives”||means, adequately skilled, trained and capable individuals / freelancers provided by, but not necessarily employed by, the Company to perform, or to assist the Company in performing, the Services for the Client;|
|“Production Stage”||means a separate distinct stage of production, including for example, but not limited to: filming, addition of subtitles or headers, effects and editing.|
|“Services”||means, services as the Client may reasonably request of the Company from time to time;|
|“Subsidiary”||has the meaning given to this expression by Sections 736 and 737 of the Companies Act 1985;|
|“Working Day”||means, a day (not being a Saturday, Sunday or public holiday), consisting of not less than 7 Working Hours;|
|“Working Hour”||means, an hour of actual work exclusive of meal breaks;|
|“Year”||means, each period of 365 (or in the case of a leap year, 366) days beginning on the Commencement Date and any anniversary of that date during the continuance of this Agreement.|
A.1. Unless the context otherwise requires, each reference in this Agreement to:
a.1.1 “writing”, and any cognate expression, includes a reference to any communication effected by telex, facsimile transmission, email or similar means;
a.1.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
a.1.3 “this Agreement” or to any other agreement or document referred to in this Agreement means this Agreement or such other agreement or document as amended, varied, supplemented, modified or novated from time to time and includes the schedules;
a.1.4. Clauses and Schedules are references to Clauses and Schedules of and to this Agreement and references to Sub-Clauses and Paragraphs are, unless otherwise stated, references to Sub-Clauses or Paragraphs of the Clause or Schedule in which the reference appears.
A. The Company is engaged in business offering services in relation to video, filming, production, editing and associated matters and is willing and able to provide its services to the Client for the period contemplated by this Agreement;
B. The Client wishes to benefit from certain skills and abilities of the Company;
C. The Client has offered and the Company has accepted engagement, on the following terms.
(1.1) The Client appoints the Company to provide Services with effect from the date the Client accepts a quotation and pays the agreed deposit amount to the Company. These terms are valid until the project concludes or is terminated in accordance with Clause 11 below.
Unless otherwise agreed in writing, the Company usually start working on your brief within ten working days of receiving your deposit. Any anticipated completion date provided by the Company is subject to Client co-operation in provision of resources (logos, images, footage, fonts, etc) and approval. Amends requested or additional requirements may result in delays. Any timelines provided are estimated, and the Company will not be liable if a project over-runs due to delays in the Client providing information or feedback, delaying approval, or any other third party issues.
(1.2)An Agreement may only be extended or renewed by mutual agreement of the parties in writing.
(1.3) In the event that a Client cancels or postpones a project or Production Stage, then provided at least 28 days notice are given to the Company and no third party costs have been paid by the Company, no cancellation charges shall apply. In the event that less than 28 days notice of cancellation or postponement are given, then the Company reserves the right to charge and the Client agrees to pay a cancellation charge calculable by direct reference to any third party charges the Company is liable to pay despite the cancellation, including but not limited to venue charges, third party Operative fees, actors, models, equipment hire, studio time, together with a reasonable fee to compensate the Company for it’s loss of trade due to the postponement or cancellation. The Company will use reasonable endeavours to mitigate any such losses.
(1.4) The facility for Clients to pay the Fees by means of a monthly instalment plan is at the Company’s sole discretion and may not be available in respect of certain projects.
2. Time for Performance
(2.1) Any time for provision of the agreed Services shall be as specified in writing by the Company to the Client but time shall not be of the essence. If no time for provision of the Services is specified, the Company shall provide the Services within a reasonable time.
(2.2) The Client (through it’s authorised representative(s), as notified in writing to the Company, or the Client representative in most direct contact with the Company during the project quotation or enquiry stage) will be required to sign off each Production Stage in writing. Once a Production Stage has been signed off, no further work can be undertaken on that Production Stage without further charges being incurred.
3. Obligations of Business Video Experts
(3.1)Throughout the period of all Production Stages, the Company shall:
(3.1.1) provide the Services to the Client;
(3.1.2) use appropriate techniques and apply appropriate standards to ensure that the Services are provided with the care, skill and diligence required in accordance with the best practice in the Company’s profession;
(3.1.3) ensure that the Services are performed by the Company, or appropriate third party Operatives engaged by the Company in accordance with the terms of this Agreement;
(3.1.4) use best endeavours to procure that it uses the best materials, techniques and standards and provide the Services with the care, skill and diligence required in accordance with the best practice of the profession;
(3.1.5) keep appropriate records (in digital form or otherwise) of activities undertaken in connection with the provision of the Services;
(3.1.6) not to do or omit to do any act, the doing of which or the omission of which would or might cause a breach of these terms; and
(3.1.7) comply with the reasonable written instructions of the Client, which may be given from time to time within the parameters of the work agreed to be undertaken.
(3.2) Where additional work is requested that is outside the parameters of that specifically detailed and agreed to in writing, the Company reserves the right to charge the Client for any such additional work and, where possible, will seek to agree any additional charge with the Client in advance of such work being undertaken.
(3.3) Where any or all of the Operatives are employed by the Company, the Company undertakes to the Client, throughout the period of all Services, with regards to those employed Operatives that it shall be responsible for making appropriate deductions for tax and National Insurance contributions from the remuneration it pays the employed Operatives
(3.4) Where any or all of the Operatives are not employed by the Company, The Company undertakes to the Client, throughout the period of all Services, with regards to those non-employed Operatives that it shall take all reasonable steps to ensure that those non-employed Operatives make appropriate deductions for tax and National Insurance contributions from the remuneration they receive in consideration of the Services from the Company.
(3.5) The Company undertakes to the Client that it will:
(3.5.1) maintain appropriate insurance with a reputable insurance company throughout the duration of a project;
(3.5.2) ensure that any Operative holds and maintains appropriate insurance with a reputable insurance company throughout the duration of Services; and
(3.5.3) supply the Client upon request and reasonable notice, with copies of current certificates of insurance for the duration of a project.
(3.6) The Company will store any raw footage for a period of 12 months from the date of filming without charge. Should the Client wish to undertake further work on the raw footage after a period of 12 months from the date of filming, it should confirm this to the Company in writing before the end of the initial 12 month period to ensure that the footage is not deleted. The Company reserves the right to charge the Client for storage of raw footage after the initial 12 month period. Ownership of and intellectual property rights in the raw footage at all times vests in and remains the property of the Company.
(3.7) The Client agrees to indemnify and keep indemnified Make it Media Limited, and hold them harmless from and against any claims, actions, proceedings, losses, liabilities, damages, costs, or expenses suffered or incurred in relation to work or services provided. The Company are not liable for any loss that may occur before, during or after the development of projects and Services undertaken. The Client also agrees and understands that the Company cannot be held responsible for any delays, errors or losses arising as a result of any third party.
Guarantees and Warranties
(4.1) The Company warrants to the Client that in entering into this Agreement and providing the Services or any other obligations arising under the Agreement, it shall not be in breach of any contract or other obligation.
(4.2) The Company provides an unlimited editing amendment guarantee to the Client in that in the event a Client is not fully satisfied with a first edit, then the Company will provide unlimited editing time until the Client is satisfied. This guarantee does not entitle the Client to further filming. Accordingly, results must be achievable through editing alone, and no further footage can be recorded without additional charge. This guarantee only applies until the Client signs off the editing Production Stage. Once the editing Production Stage has been signed off, any additional editing will attract additional charges. Further, unlimited editing does not apply to excessive additional motion graphics or edits beyond the agreed Services.
(4.3) The Company provides an unlimited scripting amendment guarantee to the Client in that in the event a Client is not fully satisfied with a first script draft, then the Company will provide unlimited scripting amendments until the Client is satisfied. This guarantee does not entitle the Client to extend beyond the agreed brief. This guarantee only applies until the Client signs off the script Production Stage. Once the script Production Stage has been signed off, any additional scripting will involve additional charges. Further, unlimited scripting amendments does not apply to excessive scripting addition requests, or scripts far beyond the initial agreed Services.
5. Fees and Expenses
(5.1) During the period of this Agreement the Client shall pay to The Company:
(5.1.1) the Fees (together with value added tax as appropriate) as they fall due in accordance with the received invoices for the project; and
(5.1.2) such additional amounts (if any) as are from time to time to be agreed between The Company and the Client, having regard to any services provided by The Company in addition to the initially agreed Services. These additional amounts shall fall due immediately upon presentation of an invoice for such additional amounts.
(5.2) The Client shall reimburse the Company for all expenses properly incurred in the provision of the Services.
(5.3) The Company shall submit to the Client invoices and receipts:
(5.3.1) for the Fees and additional amounts payable under Sub-clause 5.1.2; and
(5.3.2) and for any expenses incurred under Sub-clause 5.2 in accordance with the Schedule hereto or otherwise immediately upon presentation of such invoice or receipt.
6. Late Payment
(6.1) If the Client fails to make any payment due to the Company under Clause 5 by the date it falls due, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
(6.1.1) suspend all work pending payment;
(6.1.2) in the case of repeated late payment, require the Client to pay for future Production Stages in advance; terminate this Agreement by giving written notice to the Client provided that the Client fails to make the due payment within 5 Working Days after receiving written notice giving full particulars of the payment due and requiring such payment to be made within 5 Working Days;
(6.1.3) appropriate any payment made by the Client to such of the Services (or services supplied under any other agreement between the Client and the Company) as the Company may think fit (notwithstanding any purported apportionment by the Client); and charge the Client interest (both before and after judgement) on the amount unpaid, at the rate of eight per cent per annum above Bank of England Base Rate from time to time until payment in full is made (a part of a week being treated as a full week for the purpose of calculating such interest).
(6.1.4) In the case of a monthly payment plan, disable any link to a streaming video pending the Client bringing payments up to date;
(6.1.5) In the case of a monthly payment plan, in the event that an instalment falls overdue for more than 28 days, the Client loses its right to pay by instalments and the Company is at liberty to call in and, if necessary, commence debt recovery proceedings in respect of the entire balance of sums due.
7. Access and Facilities
(7.1) Save for actual filming, most of the work undertaken by the Company shall be completed remotely from the Company’s own premises. However, on occasion, the Company may require onsite access to the Client’s Premises or other third party locations under the Client’s control. The Client shall allow The Company such access to such premises as is necessary to carry out the Services, provided that (unless agreed specifically to the contrary and due to a specific need (e.g. lighting)) the Client shall only be obliged to afford such access during its Business Hours.
(7.2) The Client shall make available to the Company free of charge the Facilities at their disposal.
8. Intellectual Property
(8.1) Until your final payment is received by the Company, all deliverables, and rights to the video (whether in digital or printed format) will remain the intellectual property of the Company. Full copyright and ownership of all ‘commissioned’ work will reside with the Company until full payment has been received, at which point the Company will surrender to the Client all claims of ownership and full copyright for final work produced (not including project files, concepts, options, files, raw footage or documents developed throughout the process). This agreement is subject to the Company’s right to use the work for self promotion in its portfolio, in presentations, in advertising, in print and online.
(8.2) Unless agreed to the contrary between the Client and the Company, Deliverables may only be permitted for use on websites, online and general offline marketing purposes. This may, however, be dependent on Third Party licensing rules where limited commercial use applies. Deliverables cannot be used for broadcast (including, but not limited to: television, cinema or radio) use unless agreed in writing between the Client and the Company, and any relevant additional Third Party licences paid for by the Client. The Client and the Company hereby agree that such use shall only be permitted by the Company subject to the agreement of additional licencing terms under a separate contract.
The Client is liable for any breaches of all third party licence terms (and restrictions) on Deliverables provided by the Company.
(8.3) Clients paying on a monthly payment plan will only be given a streaming link to the Deliverables pending payment in full over the course of the plan. Unless agreed to the contrary between the Client and the Company, the Company will be at liberty to remove any streaming link 7 days after the payment of the last instalment and deliver to the Client a digital copy of the Deliverables. The Client should take steps to host the Deliverable elsewhere and redirect any links to where they choose to host the file. In the event the Client wishes to continue to use the Company’s online streaming, they should contact the Company within 7 days of payment of the last instalment as continued hosting may be available as a separate chargeable service.
(8.4.) The Client agrees that the Company is not liable for breach of any third party permissions and licences beyond the time when the Client uses any Deliverable provided by the company. The Client is fully responsible to pay for any recurring third party licensing costs to enable them to continue to use the Deliverable beyond any initial expiry dates. Third party licences include, but are not limited to: actor buy-out clauses, music tracks, motion graphics, stock images, stock footage, and voiceover.
(8.5) The Company are not liable for misuse of copyright, for any materials provided to them by the Client to support and/or be included in the final Deliverable. The Company assumes the Client has full copyright and permission to use any asset (e.g. image, footage, illustration, branding assets, etc) that the Client provides to the Company, and the Client is aware that they are fully responsible for permission to use such materials.
9. Personal Data
In this Clause the “Act” means the Data Protection Act 1998 and, where appropriate, terms used in this Clause shall have the meanings ascribed to them in the Act.
(9.1) In the event that the Company has access to personal data held by the Client for any reason or is provided or supplied with personal data by the Client for any purpose, The Company shall and shall make best endeavours to procure that the Operatives shall:
(9.1.1) use and/or hold the personal data only for the purposes and in the manner directed by the Client;
(9.1.2) not otherwise modify or amend or alter the contents of such personal data or disclose or permit the disclosure of such personal data to any third party unless specifically authorised in writing by the Client;
(9.1.3) take all such reasonable steps, as may be necessary to safeguard such personal data; and
(9.1.4) comply in all respects with the Act and not do or permit anything to be done which might jeopardise or contravene the terms of the Client’s registration under the Act.
(10.1) Subject to clauses 10.2 to 10.7 below, and unless specifically noted to the contrary, this Agreement shall continue from the Commencement Date until the Deliverable has been delivered to the Client.
(10.2) The Client may terminate this Agreement at any time with immediate effect by giving written notice to the Company if the Company:
(10.2.1) commits any breach of these terms and, in the case of a breach which is capable of remedy, fails to remedy it within 21 days after receiving written notice by the Client giving full particulars of the breach and requiring it to be remedied;
(10.2.2) becomes permanently incapable of providing the Services; or
(10.2.3) goes into liquidation (other than for the purposes of amalgamation or reconstruction), has a receiver appointed over a significant part of its assets, enters bankruptcy or an IVA or takes or suffers any similar action as a result of debt or anything analogous occurs under the law of any jurisdiction in relation to the Company.
(10.3) The Company may terminate this Agreement at any time with immediate effect by giving written notice to the Client if the Client:
(10.3.1) commits any breach of this Agreement, excluding any breach occurring under Clause 6, and, in the case of a breach which is capable of remedy, fails to remedy it within 21 days’ after receiving written notice by The Company giving full particulars of the breach and requiring it to be remedied; or
(10.3.2) goes into liquidation (other than for the purposes of amalgamation or reconstruction), has a receiver appointed over a significant part of its assets, enters bankruptcy or an IVA or takes or suffers any similar action as a result of debt or anything analogous occurs under the law of any jurisdiction in relation to the Company.
(10.4) (For the purposes of Paragraphs 10.2.1 and 10.3.1, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance.
(10.5) The Company reserves the right to terminate this Agreement on grounds that it considers (in it’s opinion) that the Client is setting unreasonable demands, in which case it shall be entitled to refund the Client all monies that may have been paid, waive the entitlement to receive any further monies and terminate this Agreement forthwith without penalty. The Client shall not be entitled to any Deliverables in such circumstances and shall not be entitled to use any drafts or early cuts.
(10.6) In the event that the Company loses all raw footage or part edited footage the Client shall be entitled to a re-shoot. If a re-shoot is not in any way possible, the Client may terminate this Agreement and obtain a refund for any and all monies paid under this Agreement. However, the Company shall not be liable to the Client for any other sums in such circumstances.
(10.7) Save in the case of 10.6 above, the rights to terminate this Agreement given by this Clause 11 shall not prejudice any other right or remedy of either party in respect of the breach concerned or any other breach.
11. Effects of Termination
Upon the termination of this Agreement for any reason (save for termination by the Company in accordance with Clause 10.5), in which case clauses 11.1 and 11.2 shall not apply):
(11.1) any sum owing by either party to the other under any provisions of this Agreement shall become immediately payable;
(11.2) The Company shall be entitled to the relevant proportion of the Fees to the date of termination, calculated on a time apportionment basis, but it shall not be entitled to any other payment or compensation whatsoever in respect of such termination;
(11.3) each party shall forthwith cease to use, either directly or indirectly, any Confidential Information, and shall forthwith destroy or return to the other party any documents and copies in its possession or control which contain or record any Confidential Information;
(11.4) any provision of this Agreement which is expressed to continue in force after termination shall continue in full force and effect; and
(11.5) except in respect of accrued rights, neither party shall be under any further obligation to the other.
(12.1)Each party to the Agreement shall at all times use its best endeavours to keep confidential (and to procure that its Operatives, employees and agents shall keep confidential) any Confidential Information which it or they may acquire in relation to the business and affairs of the other party to this Agreement and shall not disclose such information except with the written consent of that other party or in accordance with the order of a court of competent jurisdiction.
(12.2) The obligations of each of the parties contained in Sub-clause 12.1 shall continue without limit in point of time but shall cease to apply to any information coming into the public domain otherwise than by breach by any party of its obligations contained in this Agreement, provided that nothing contained in Sub-clause 12.1 shall prevent any party to this Agreement from disclosing any such information to the extent required in or in connection with legal proceedings arising out of this Agreement.
13. Force Majeure
(13.1) If either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (other than a strike or lockout induced by the party so incapacitated), the failure of editing software or any other third party systems, failure of storage devices, extreme weather, power outages, failure of ISP or telecoms, the party unable to fulfil its obligations shall immediately give notice of this to the other party and shall do everything reasonably in its power to resume full performance.
(13.2) Subject to Sub-clause 13.1 above neither party shall be deemed to be in breach of its obligations under this Agreement.
(13.3) Each party shall not be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in relation to a Force Majeure event.
(13.4) If and when the period of such incapacity exceeds 6 months (or by the very nature of the Force Majeure event, is incapable of rectification) then this Agreement shall automatically terminate unless the parties first agree otherwise in writing.
14, Relationship of Parties
Nothing in these terms shall render the Company or the Operatives an employee, agent or partner of the Client and neither the Company nor the Operatives shall hold themselves out as such.
15. No Waiver
No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
If any provision of this Agreement is held by any court or other competent authority to be invalid or unenforceable in whole or in part, this Agreement shall continue to be valid as to its other provisions and the remainder of the affected provision.
17. Entire Agreement
(17.1) This Agreement contains the entire agreement between the parties and supersedes and replaces all previous agreements and understandings between the parties.
(17.2) Each party acknowledges that, in entering into this Agreement, it is not relying on any representation, warranty, pre-contractual statement or other provision except as expressly provided in this Agreement.
(17.3) limiting the generality of the foregoing, neither party shall have any remedy in respect of any untrue statement made to him upon which he may have relied in entering into the Agreement, and a party’s only remedy is for breach of contract. However, nothing in this Agreement purports to exclude liability for any fraudulent statement or act.
18. Non – Assignment
This Agreement is personal to the parties and neither party may assign, mortgage, charge (otherwise than by floating charge), or sub-license any of its rights hereunder.
19. Third Party Liability
For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of these terms, this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
20. Third Party Rights
Each party to this Agreement acknowledges that the Operatives from time to time shall be entitled to the benefit of rights afforded to it under Clauses 8 and 9.
21. Notices and Service
(21.1) All notices to be given under this Agreement by either party to the other shall be in writing and shall either be delivered personally or sent by first class prepaid post or airmail prepaid post or by telex, cable, facsimile transmission or email and shall be deemed duly served:
(21.1.1) in the case of a notice delivered personally, at the time of delivery;
(21.1.2) in the case of a notice sent inland by first class prepaid post, 2 Business Days after the date of dispatch;
(21.1.3) in the case of a notice sent overseas by airmail prepaid post, 7 Business Days (being Business Days in the place to which the notice is dispatched) after the date of dispatch; and
(21.1.4) in the case of telex, cable, facsimile transmission or email, if sent during normal Business Hours than at the time of transmission and if sent outside normal Business Hours then on the next following Business Day provided (in each case) that a confirmatory copy is sent by first class prepaid post or by hand by the end of the next Business Day.
(21.2) All notices to be given under Sub-clause 21.1 shall be delivered to the registered or principal office of the other party or to such other address as any be notified to either party by the other party in writing from time to time.
(22.1) Save as provided by 22.2 below, all disputes, differences or questions arising out of this Agreement or as to the rights or obligations of the parties under it or in connection with its construction shall be referred to arbitration by a single arbitrator to be agreed between the parties or, failing agreement, within 14 days by an arbitrator to be appointed at the request of any party by the President of the Chartered Institute of Arbitrators having due regard to any representations made to him as to the appropriate qualifications of such arbitrator. The arbitration shall take place in a venue of the Company’s choosing and shall be in accordance with the Arbitration Act 1996 or any re-enactment or modification of such Act for the time being in force.
(22.2) Notwithstanding clause 22.1 above, the Company shall be at liberty to commence debt recovery proceedings in respect of any sums due to them from the Client pursuant to this Agreement or otherwise in the County Courts without recourses to arbitration. Further, the requirement to refer matters to arbitration in clause 22.1 above shall not apply to matters involving injunctive proceedings.
23. Set Off
Both the Client and the Company may set off any matured obligation due to it from the other party against any obligation owed by it to the other party under this Agreement.
24, Applicable Law and Jurisdiction
(24.1) This Agreement shall be governed by and construed in accordance with the laws of England and Wales.
(24.2) The parties agree to submit to the exclusive jurisdiction of the courts of England and Wales.