Standard business terms and conditions

Dated 2 March 2020.

1. INTERPRETATION

1.1. In these terms and conditions, the following expressions shall have the following meanings:
Agreement: these terms and conditions and any subsequent written agreements signed by the Producer and Client.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confirmation of Order: the receipt by the Producer of the first payment by the Client.
Client: the individual, company, party or other legal entity who wishes to engage the Producer, and with whom the Producer has agreed, to develop, produce and deliver the Work Product according to the details set out in written agreements between the parties.
Delivery Date: the date by which the work product will be delivered to the Client.
Fixed Fee: the fee described in clause 5 of these terms and conditions, as agreed upon by the parties in the Confirmation of Order.
Licence: the terms under which the Client is permitted to use the Work Product including any special rights, restrictions and obligations, as detailed in the Agreement.
Producer: Andy Wasley, of 3 Oak Walk, Wallington, Surrey SM6 7DE, and any sub-contractors, employees, agents and assigns under the Producer’s employment or otherwise working with him.
Production Brief: a document, whether electronic or in print and of whatever title, containing details of the desired Work Product including (but not limited to, and only as appropriate) minutes in length, the aims, creative and editorial approach agreed between the Client and the Producer.
Production Schedule: the agreed dates, times and locations for the preparation, production and post-production of the Video during the Term, as agreed by the parties.
Services: the actions undertaken by the Producer to enable production of the Work Product, including (but not limited to) filming and photography, creative consultation, concept development, editing, retouching and delivery.
Term: the period from the date of these terms and conditions until the Delivery Date or (if earlier) termination described in clause 10.
Work Product: the products of the Services, including Phootgraphy and Video and all performances and literary, dramatic, artistic and musical material incorporated by the Producer into the Photography or Video but excluding rights in works owned by the Client.

1.2. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, phrase or term preceding those terms.

2. ENGAGEMENT

2.1. In consideration of payment to the Producers of the Fixed Fee, the Client engages the Producer, and the Producer agrees, to produce the Work Product in accordance with the Production Brief and to provide such other services as are agreed between the parties from time to time in connection with the Video (Services). The Services shall include:
(a) Selecting, gathering, holding and developing in consultation with the Client material that is to be contributed to the Work Product by third parties;
(b) Making all necessary preparations for the production of the Work Product including providing or engaging the crew, studio and other necessary facilities and services necessary to render the Services;
(c) Background music and soundtrack;
(d) Creating and producing the Work Product in a timely fashion in accordance with Client’s instructions; and
(e) Undertaking and overseeing all post production titling, editing, scoring, dubbing, cutting and completion of the Work Product.

2.2 The Producer can also provide the following Services at the request of the Client for an additional fee:
(a) Creating and developing a storyboard for any Video included in the Work Product, including any in full discussion with the Client and in accordance with the directions and request of the Client;
(b) Consulting with and assisting in writing of any script for narration in any Video included in the Work Product, including subtitling;
(c) Casting voice artists in consultation with the Client; and
(d) The upload of any Video included in the Work Product to various video sharing websites.

2.3. Subject to clause 2.2(d), any video sharing will be made at the risk of the Client, and the Producer will not guarantee that all of the websites used will accept the Video or the manner in which the Video will be displayed.

2.4. In accordance with clause 2.3, should the Video be uploaded to any video sharing websites, or websites with video sharing capability, the Client understands there is no guarantee any future changes the Client may wish to make to the Video may be implemented, in accordance with the websites’ policies. The Client understands that any video sharing websites, or websites with video sharing capability, may have their own terms and conditions over which the Producer has no control.

2.5. The Fixed Fee shall be protected for the duration of production. The Client will be liable for any further costs incurred should they request any extra services not included within the original Production Brief, or any other services the Client requires after the completion of the Work Product.

2.6. The Client will be required to sign an Agreement, including the details of the Licence, and return it by email or post to the Producer. The signatory to the Agreement confirms that they have the required authority to act on behalf the Client under these terms and conditions. The Agreement will be in effect from the date of the Confirmation of Order.

2.7. The Agreement may include entitlement for the Client to a revision or revisions of the Work Product following the Delivery Date. The Client should inform the Producer of revisions within five Business Days of receiving the Work Product. Should the Client require further revisions to that entitled then the Producer shall have the discretion to charge a fee (Revision Fee).

3. CREATIVE CONTROL

3.1. The parties agree to meet from time to time, as agreed between the parties, to consult in good faith with each other over the editorial content and artistic direction of the Work Product.

3.2. The Client may appoint a representative (Client Representative) who shall have the right on behalf of the Client to accept as satisfactory the story outlines, scripts voices, storyboards, design and music (if and as applicable) of the Work Product and the Client shall be responsible for the cost of any lengthening of the Production Schedule necessitated by the exercise of such right, other than the cost of charges arising from acts or omissions of the Producer. The Client Representative will also be available to provide hands-on assistance during filming or photography.

3.3. The Producer will submit to the Client details of the scripts, voices, storyboards, design and music for the Work Product for review and acceptance by not later than the date agreed between the parties and the Client shall confirm either its acceptance or non-acceptance with reasons in writing within five Business Days after receipt of such details. If the Producer does not receive notice of such acceptance or non-acceptance within that period of five Business Days, the Client will be deemed to have accepted such details.

4. OBLIGATIONS

4.1. The Producer agrees that he shall:
(a) Render the Services to the highest professional standards and in accordance with the Client’s reasonable instructions and requests;
(b) Perform the Services in willing co-operation with the Client via the Client Representative and where requested by the Client its other professional advisors and service providers such as the Client’s PR or advertising agency;
(c) Not without the Client’s written consent, order goods nor incur any liability on the Client’s behalf nor pledge its credit nor hold itself out as being entitled to do so other than as is contemplated and agreed by the parties in advance; and
(d) Be responsible for arranging and supervising the performance of the Services.

4.2. The Client agrees that it shall:
(a) Provide the Producer with reasonable access to its premises at no expense to the Producer inclusive of the cost of space, heat, light and power;
(b) Inform all employees, agents and guests at its premises of the proposed filming, photography or other Services, and obtain relevant release forms duly signed by all such persons;
(c) Provide the Producer facilities of travel and accommodation at the Client’s expense should the Producer be required to travel outside the London Orbital Motorway, also known as the M25 motorway, unless the parties have agreed to other expense arrangements as set out in the Production Brief;
(d) Assume liability for any information, text, graphic, photographic, video or other material supplied by the Client to the Producer for use in the Work Product, in terms of both the accuracy of the material provided, and the rights to include the material in the Work Product;
(e) Assume complete liability for the character and contents of the Work Product produced for the Client including all text, pictures, illustrations, animations, soundtrack, background music, and any other relevant material;
(f) Where necessary and agreed give the Producer access to the Client’s personnel and instruct such personnel to assist and support the Producer wherever possible, to comply with the Producer’s reasonable requests in conducting the Services, and in particular to provide such information as the Producer may request;
(g) Negotiate with the Producer in good faith in respect to any delay to the Delivery Date caused by an event outside the Producer’s own control; and
(h) Provide access to digital information, company graphics and website for use in the Work Product.

5. FEES AND PAYMENT

5.1. Subject to the provisions of these terms and conditions and to the due performance by the Producer of his material obligations under the Agreement, the Client shall as inclusive remuneration and as full and complete consideration for the Services and all rights granted to the Client in the Agreement, pay to the Producer the Fixed Fee payable as follows:
(a) 50% on Confirmation of Order of the Services (Deposit); and
(b) 50% on Delivery Date.

5.2. The Client acknowledges the Deposit will be non-refundable.

5.3. Should the Client require further revisions pursuant to Clause 2.7, then the Revision Fee shall be payable prior to the Producer making the revisions.

5.4. The Fixed Fee shall be exclusive of VAT, which shall be paid to the Producer, in addition, on submission by the Producer of a valid VAT invoice.

5.5. The Client confirms all payments will be made payable to the Producer by either method of:
(a) Bank Transfer; or
(b) Cheque.

5.6. Subject to clause 5.5, all payments whether by Bank Transfer or Cheque will be payable to the accounts detailed on the front of invoices for payment.

5.7. In accordance with clause 5.1, the Client will be invoiced for each separate payment. Payment of the balance is due by the date stated on the front of invoices for payment (Due Date), which will usually be 30 calendar days after the date of the invoice or otherwise as arranged between the Parties. Payment of all outstanding amounts will be required in full before the assignment of a usage Licence or rights transfer to the Client.

5.8. Should any payments not be made, for whatever reason, the Producer reserves the right to postpone production of the Work Product, and any adverse consequences and arrangements for alternative payment will be the responsibility of the Client.

5.9. Subject to clause 5.8 the Producer will be entitled to bring legal action to recover any debts and non-payments in the event the Client has not made payment to the Producer on or before the Due Date for Services rendered.

5.10. The Fixed Fee shall be inclusive of charges of administration, assignment of a production manager, protection and storage of any data and material, including all text, pictures, illustrations, animations, soundtrack, background music, and any other relevant material, for a minimum of two years, and delivery of the Work Product after completion.

5.11. The Producer asserts his right under the Late Payment of Commercial Debts (Interest) Act 1998 (as amended) to charge interest at the statutory rate on invoices that are not settled by the Due Date, and to charge statutory fixed costs as permitted by said Act.

5.12. The Client may not withhold any portion of the Fixed Fee in respect of any delay to the Delivery Date caused by non-availability of third parties, acts of war or terrorism, natural phenomena, or the Client’s own errors, omissions, non-availability or failure to meet obligations under the Agreement.

6. RIGHTS

6.1. Copyright in and title to all content filmed, recorded, photographed, written or otherwise created by the Producer including (but not limited to) the rushes, Video and all edit files pertaining thereto, photographs, sketches, negative films, slide film and concept development documents remain vested exclusively in the Producer at all times throughout the world, unless assigned to the Client following payment of a Rights Transfer Fee.

6.2. In consideration of, and subject to, the final payment of all fees due to the Producer by the Client, the Producer will grant and assign to the Client a Licence detailing the territories in which the Client may exploit the Work Product, the term for which the License is valid and any other specified obligations to which the partied have agreed in completing the Confirmation of Order.

6.3. Subject to any other written agreement between the parties the Licence will not grant the Client the right to edit, alter, add to, take from, adapt or translate the Work Product, nor to sub-license the Work Product for such production work to any third party.

6.4. The Producer asserts his moral rights, and in particular his right to use extracts from the Work Product for his own promotional use in internal and client and prospective client presentations, show reels and on his Producer’s website and social media, unless such use could reasonably be construed as detrimental to the Client’s interests or contrary to the Licence.

6.5. The Producer shall promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to these terms and conditions, and shall use all reasonable endeavours to procure that any third parties shall also do so as necessary. The Client shall reimburse the Producer for the reasonable costs properly incurred by it in complying with its obligation under this clause.

6.6. For the purposes of the Data Protection Act 1998, as amended, the Producer agrees and consents to the Client holding and processing personal data relating to the Producer and individuals connected with the Producer in any form, whether electronically or otherwise, provided that the Producer complies at all times with data protection law and best practices.

7. DATA PROTECTION

7.1. For the purposes of the Data Protection Legislation, the Client is the data controller and the Producer is the data processor (where Data Controller and Data Processor have the meaning defined in the Data Protection Legislation. The Client agrees and consents to the Producer holding and processing personal data relating to the Client and individuals connected with the Client in any form, whether electronically or otherwise, provided that the Producer complies at all times with Data Protection Legislation and best practices.

7.2. The Producer shall, in relation to any Personal Data processed in connection with the performance by the Producer of its obligations:-
(a) process that Personal Data only on the written instructions of the Client;
(b) ensure that he has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
(d) assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Client without undue delay on becoming aware of a Personal Data breach; and
(f) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Agreement unless required by Applicable Law to store the Personal Data.

7.3 The Client consents to the Producer’s appointment of third party processors of Personal Data under this agreement for the Producer to provide its services and obligations. The Producer confirms that it has entered or (as the case may be) will enter with the third party processors into a written agreement substantially on the third party’s standard terms of business.

8. WARRANTIES

8.1. The Producer hereby warrants, represents and undertakes to the Client that:
(a) The Producer is fully entitled to enter into and to perform these terms and conditions;
(b) The Work Product (save to the extent that it incorporates material made available to the Producer by the Client) will be wholly original to the Producer and will not infringe the copyright or any other rights of any third party, including rights to privacy, subject always to the Client’s meeting its obligations under clause 8.3;
(c) The Producer shall not make any commercial exploitation of the Video except as permitted under the Agreement and as set out in clause 6.4; and
(d) The Producer shall indemnify the Client and keep the Client fully and effectively indemnified against all actions, costs, demands, losses, claims and expenses of whatsoever kind or nature arising from any actual or threatened breach or non-performance of any of the warranties, representations, undertakings or obligations on the Producer’s part contained in these terms and conditions.

8.2. In order to receive indemnification under clause 8.1(d), the Client shall promptly notify the Producer of a claim and shall grant the Producer the sole right to defend, control and settle such claim, and the Producer shall have the right at his own cost to have his own legal counsel present at all meetings and hearings relating to the claim. The Client shall not compromise, settle or otherwise resolve without the Producer’s prior written consent, not to be unreasonably withheld or delayed.

8.3. The Client hereby warrants, represents and undertakes to the Producer that:
(a) It is fully entitled to enter into and perform these terms and conditions;
(b) It shall either own, or have obtained and paid for licences to use, all materials provided to the Producer by the Client in connection with the production of the Video; and
(c) The Client shall indemnify the Producer and keep the Producer fully and effectively indemnified against all actions, costs, demands, losses, claims and expenses of whatsoever kind or nature arising from any actual or threatened breach or non-performance of any warranties, representations, undertakings or obligations on the Client’s part contained in these terms and conditions.

8.4. In order to receive the indemnification under clause 8.3(c), the Producer shall promptly notify the Client of any claim and shall grant the Client the sole right to defend, control or settle such claim and the Producer shall have the right to have their own counsel present at the Producer’s sole cost and expense.

9. CONFIDENTIALITY

Each party to this Agreement shall not, without consent from the other, make to any third party any statement or supply any information relating to the business or legal affairs of the other (but this shall not prevent proper disclosures of information to the parties’ professional advisers or as required by law).

10. TERMINATION

10.1. The Client may postpone or terminate the production of the Work Product by giving ten Business Days’ written notice before Services are due to be carried out.

10.2. On postponement or termination under clause 10.1, the Producer will ensure reasonable efforts to cancel any arrangements for Services made for the purpose of production of the Work Product (Arrangements). The Producer will not guarantee any money involved in the Arrangements will be completely or in part refunded from their cancellation.

10.3. On termination under clause 10.1, the Producer shall be entitled to receive payment:
(a) In full, of all sums that the Producer is, up to the date of termination, contractually obligated to pay to third parties strictly in connection with the Work Product; and
(b) On a pro rata basis, for Services rendered up to the date of termination. After the Deposit, the remaining pro rata amount shall be calculated according to the following:
(i) Termination given with ten or more Business Days’ notice will not incur a termination fee other than as detailed at clause 10.3a;
(ii) Termination given with six to nine Business Days’ notice shall incur a 25% termination fee;
(iii) Termination given with four to five Business Days’ notice shall incur a 50% termination fee; or
(iv) Termination given with three or fewer Business Days’ notice shall incur a 75% termination fee.

10.4. Clause 10.3 is applicable regardless of the method of payment used in accordance with clause 5.5.

10.5. The Producer may postpone or terminate the production of the Work Product if any material, content, production, or any other relevant material is found to be in any way disorderly, offensive, illegal, indecent, or likely to damage the Producer’s reputation, or present a threat to the safety of the Producer or the general public.

10.6. The Producer may terminate this agreement with immediate effect by giving notice to the Client if:-
(a) The Client commits a material breach of any term of this agreement which breach is irremediable or fails to remedy that breach within a period of five Business Days after being notified to do so; or
(b) The Client repeatedly breaches any of the terms of this agreements in such a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement.

10.7. On postponement or termination under clause 10.4 or 10.5, should the Producer cancel the production of the Work Product, the Producer will refund any remaining costs of production to the Client after deducting all incurred expenses, including a pro rata amount of the production fee as detailed at clause 10.3.

11. ASSIGNMENT AND OTHER DEALINGS

11.1 The Producer is entitled to assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of his rights and obligations under this agreement.
11.2 The Client shall not assign the benefit of this agreement or any of the Services to any third party without the prior consent of the Producer. The Client shall remain primarily liable to the Producer for all its obligations under this agreement notwithstanding any such assignment.

12. THIRD PARTY RIGHTS
No one other than a party to this agreement shall have any right to enforce any of its terms.

13. NOTICES

13.1. Any notice or other communication given to a party in connection with the Agreement shall be in writing and shall be:
(a) Delivered by hand or by prepaid first-class post or other next Business Day delivery service at its principal place of business; or
(b) Sent by email to the address specified on the Producer’s website or in other written communications with the Client.

13.2. Any notice or communication shall be deemed to have been received:
(a) If delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address.
(b) If sent by prepaid first-class post or other next Business Day delivery service, at 9:00am on the second Business Day after posting or at the time recorded by the delivery service;
(c) If sent by email, at 9:00am on the next Business Day after transmission.

13.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

14. ENTIRE AGREEMENT

14.1. The Agreement constitutes these terms and conditions and any other details agreed between the parties in the Agreement and Production Brief. These Terms and Conditions are, however, immediately superseded and extinguished by any subsequent Agreement properly and legally executed between both the Producer and Client.

14.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in writing between the parties. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

14.3. Should any conflict arise between terms agreed between the parties in the Production Brief and these terms and conditions, the terms agreed in the Production Brief shall be treated as though they have amended, superseded or extinguished the conflicting clauses in these Terms and Conditions.

15. JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

16. GOVERNING LAW

This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.