9th November, 2019
In these Terms, the following terms shall have the following meanings:
‘We, Us and Our’ means Film Foundry Limited of French House, 173 French Street, Sunbury-upon-Thames TW16 5JY, Company Registration Number: 10870023 (‘Film Foundry Limited’).
‘the Agreement’ means these Terms, the Quote and any Contract for Services.
‘Client’ means the person, firm, company or other entity who has instructed Us to carry out the Services (as defined below) as set out in the Agreement.
‘the Works’ means the products and materials created, developed and produced by Us for the Client pursuant to the Agreement.
‘Client Materials’ means any media, products, goods and materials in whatever form (including all Intellectual Property Rights in the same) provided or made available by the Client to us for use in connection with the Agreement, and including any master tapes, film negative prints, sound tapes, video tapes or visual images or sound held in any media.
‘Confidential Information’ means such information as We may from time to time provide to the Client (in whatever form including written, spoken, visual form, digital or physical) relating to the Agreement and the Works, and all know-how, trade secrets, financial, commercial or technical information of any kind disclosed by Us to the Client.
‘Contract for Services’ means any subsequent contract for the provision of Services entered into between Film Foundry and the Client pursuant to these Terms.
‘IP Rights’ means copyright, design rights, moral rights, trademarks, service marks, rights (registered or unregistered) in any designs, applications for any of the foregoing, trade or business names, and know-how, lists of suppliers and customers and other proprietary knowledge and information, internet domain names, rights protecting goodwill and reputation, and all intellectual property rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world and all rights under licences and consents in respect of any of the rights and forms of protection set out in this definition.
‘Quote’ means a quote presented by Us in respect of Services to be provided to the Client.
‘Services’ means the services to be provided by Us for the Client pursuant to the Agreement, and includes the Works (as defined below) arising out of the Services.
‘Terms’ means these terms and conditions of business.
‘Film Foundry’s Intellectual Property’ means all rights, including IP Rights, in and to any software, tools, utilities and any other materials, and all pre-existing intellectual property rights therein which were in existence prior to the parties entering into the Agreement or developed independently of the Agreement, in whatever form.
2. FORMATION OF CONTRACT
2.1 The Services will be carried out in accordance with these Terms, any Quote, and any subsequent Contract for Services to the exclusion of any other terms and conditions the Client seeks to impose whether orally or in writing, unless agreed otherwise in writing by the parties.
2.2 All representations, conditions or warranties, or other terms concerning the Services which might otherwise be implied or incorporated in the Agreement, whether by statute, common law or otherwise are, to the maximum extent permitted by law, excluded from the Agreement or any variation thereof, unless expressly accepted by Us in writing.
2.3 No agent, freelancer or employee of Film Foundry has the power to vary these Terms orally or in writing, or to make any statement or representation about the Services offered, their fitness for any purpose or any other matter otherwise then in accordance with Clause 15 hereof.
2.4 Upon requesting Services from Us, the Client shall be deemed to have accepted these Terms and these Terms shall become binding as between the Client and Us, notwithstanding the absence of any formal acknowledgement.
2.5 The Client and We may enter into a Contract for Services which will constitute a separate binding contract between the parties which shall incorporate (with any necessary changes) these Terms. In the case of any conflict or inconsistency between these Terms and any subsequent Contract for Services, these Terms shall take precedence.
3. PRICES AND TERMS OF PAYMENT
3.1 We will invoice the Client for the prices quoted in respect of Services to be provided at the times set out in the relevant Quote or Contract for Services.
3.2 We shall be entitled to make an adjustment to any quoted prices in the event that additional costs are incurred, or likely to be incurred, by reason of:
3.2.1 the Client Materials (or any part thereof) being, in Our reasonable opinion in any way defective, in an unsuitable format (or a different format to that which we expected to receive the same) or of unsuitable quality for normal processing;
3.2.2 any information supplied by the Client or any third party in connection with the Agreement and the Services being inaccurate or incomplete, or failing to give Us a full and accurate indication of the work involved and/or time and resources required; or
3.2.3 changes by the Client or any third party in its requirements for the Services or Works; or
3.2.4 exceptional circumstances outside our control, such as changes in third party costs.
3.3 Subject to clause 3.4 and unless otherwise agreed by us in writing, all invoices rendered by Film Foundry shall be submitted weekly and are payable within 7 days of the date of invoice.
3.4 We expressly reserve the right, at Our sole option, to require payment by instalments during the performance of the Agreement and/or to require payment of all amounts due to Us in respect of Works to be provided prior to delivery of such Works.
3.5 The Client shall pay all amounts owing to Film Foundry in full and shall not exercise any rights of set off or counterclaim against invoices submitted.
3.6 Payment of all amounts shall only be made in the currency in which they are invoiced and shall not be subject to any deductions or charges whatsoever.
3.7 In the event of default in payment by the Client under the Agreement, We shall be entitled, without prejudice to any of Our other rights or remedies, to suspend any further performance of the Services without notice and to charge interest on any amount outstanding at the rate of 4% above the base rate of Barclays Bank plc from time to time (accruing from day to day both before and after judgment), from the due date of payment to the actual date of payment.
3.8 All sums payable under this Agreement are exclusive of Value Added Tax and any other duty or tax, which shall (if and to the extent applicable) be payable by the Client at the rate and in the manner from time to time prescribed by law.
3.9 A working day consists of up to 10 hours including a minimum of 1 hour of lunch and screen breaks. A working week consists of up to 50 hours comprising five days of up to 10 hours per day. Overtime is payable at a rate of 1.5x the commensurate hourly rate after 10 hours in any day, and 2x the hourly rate after midnight or on weekends or on bank holidays.
4. PERFORMANCE AND DELIVERY
4.1 Unless otherwise agreed in writing between the parties, all times specified in a Quote or Contract for Services for performance of the Services and delivery of the Works are given in good faith but are not guaranteed by Us.
4.2 Notwithstanding that We and the Client may have agreed that time is of the essence in respect of specified Services or Works, the time for performance of the Services or delivery of the Works shall in every case be dependent upon prompt receipt of all necessary information, materials (including Client Materials), final instructions and/or approvals from the Client. The Client acknowledges and agrees that any changes to its requirements and/or the occurrence of any of the circumstances in clause 3.2 may result in delay in performance or delivery, for which We shall not be liable.
4.3 Where the Works are to be delivered electronically, the Client acknowledges and agrees that:
4.3.1 electronic delivery is not a completely secure medium of communication and that an unauthorised third party may intercept, tamper with or delete the Works to be delivered electronically; and
4.3.2 electronic delivery may involve reliance upon third party providers and data carriers, over which We have no control.
4.4 We shall not be responsible for and shall have no liability to the Client or any third party for:
4.4.2 any delay in delivery or any non-receipt of any Works delivered electronically;
4.4.3 any loss or damage (including loss of data) that results from any person gaining unauthorised access to any Works delivered electronically;
4.4.4 use or disclosure of any data obtained by any third party as a result of that third party gaining unauthorised access to any Works delivered electronically; and
4.4.5 any loss or damage resulting from any malfunction of or the introduction of any viruses, worms, logic bombs, time locks, time bombs, trojan horses and/or bugs to any equipment and/or software used to effect and/or receive any Works delivered electronically.
5. INTELLECTUAL PROPERTY
5.1 The Client acknowledges that We own, and shall retain ownership of, Film Foundry Intellectual Property, and We shall not at any time be required to deliver to the Client any of Film Foundry Intellectual Property whatsoever.
5.2 All title and IP Rights in and to the Works (excluding Film Foundry Intellectual Property), shall pass to the Client only upon the Client paying to Us all sums due and payable under the Agreement.
5.3 The Client hereby grants to Us a perpetual, non-exclusive, transferable, sub-licensable, royalty-free licence to use the Client Materials to the extent necessary for Us and/or Our suppliers to provide the Services and the Works.
5.4 The Client acknowledges and agrees that IP Rights in and to underlying materials processed by Film Foundry in the performance of the Services and/or embodied in the Works may be owned by third parties and that the use by the Client of the Works shall be subject always to the Client obtaining any and all necessary licences and consents from the relevant underlying rights’ owner(s).
6. CANCELLATION AND VARIATION
6.1 Except where otherwise stated in a Quote or Contract for Services, this Agreement will expire on completion of the Services to be provided pursuant to it.
6.2 The Agreement (and any Services to be provided under it) may only be cancelled with Our written consent and in accordance with these Terms (and if applicable, the terms of any subsequent Contract for Services). The giving of consent shall not in any way prejudice Our right to recover from the Client full compensation for any loss or expense arising from such cancellation of the Agreement.
6.3 Notwithstanding clause 6.2 and without prejudice to any other rights or remedies available to Us, the Client may give Us written notice of cancellation of the Agreement (and any Services to be provided thereunder), provided that where such notice is received by Us:
6.3.1 less than 24 hours prior to the date for performance or the commencement of performance of the relevant Services (the ‘Target Date’), We shall be entitled to charge the Client the full price specified in the Quote or the relevant Contract for Services or, if none is stated, the applicable amount chargeable to the Client based on BECTU’s rate card current at the Target Date; and
6.3.2 less than five working days but more than 24 hours prior to the applicable Target Date, We shall be entitled to charge the Client one half of the full price specified in the Quote or the relevant Contract for Services or, if none is stated, one half of the applicable amount that chargeable to the Client based on BECTU’s rate card current at the Target Date, in each case reflecting the fact that We are unlikely to be able to secure an order for the Services and/or to reallocate the resources allocated to the Client’s order within the specified timeframes.
6.4 We may cancel this Agreement (and any Services to be provided under it) at any time on written notice to the Client. Cancellation under this clause shall be without prejudice to any other rights or remedies available to Us (including Our right to recover payment from the Client for any Services provided).
6.5 Any provisions of the Agreement which by their nature are intended to survive cancellation or expiry (including clause 8 (Liability and Indemnity)) shall remain in full force and effect notwithstanding any cancellation or expiry of the Agreement.
7. LIABILITY AND INDEMNITY
7.1 Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability cannot be excluded or limited as a matter of law.
7.2 Subject to clause 7.1 and without prejudice to any other provision of these Terms, the Client agrees that:
7.2.1 the Agreement states the full extent of Our obligations and liabilities in respect of the Works and performance of the Services;
7.2.2 under no circumstances shall We be liable for any indirect, special or consequential loss or damage whatsoever, or for any loss of business profits, business interruption, depletion of goodwill, loss of use or corruption of data or software, whether on a direct or indirect basis;
7.2.3 Our entire liability for any direct loss suffered by the Client under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall (subject to clause 4.4 above and clause 9.1 below) be limited to the actual charges paid by the Client in accordance with the Agreement; and
7.2.4 this clause 7.2 is reasonable and necessary in the circumstances and, having regard to that fact, does not take effect harshly or unreasonably against the Client.
7.3 The Client shall indemnify and hold Us harmless from and against all claims or proceedings and all loss and damage of any kind, costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, Us as a result of or in connection with:
7.3.1 any defamatory or libellous matter or any infringement or alleged infringement of a third party’s Intellectual Property Rights or other rights arising out of the supply or use of the Client Materials in relation to the Works and/or in the course of carrying out the Services;
7.3.2 any damage to property caused by Film Foundry in the course of carrying out the Services as a result of any act or omission of the Client (including its officers, employees, freelancers and agents); and
7.3.3 any breach by the Client, including its officers, employees, freelancers and agents of any of these Terms or the terms of any Contract for Services.
7.4 Clause 7.3 above shall apply whether the Client, or its officers, employees, freelancers or agents, have been negligent or otherwise.
7.5 Any recommendations or suggestions by Us relating to the use of the Works are given in good faith but it is for the Client to satisfy itself of the suitability of the Works for its own particular purpose. Accordingly, unless otherwise expressly agreed in writing, We give no warranty as to the fitness of the Works for any particular purpose, even though that purpose may be specified in the Quote, and any implied warranty or condition (statutory or otherwise) to that effect is excluded.
The Client shall maintain and keep effective at all times insurance policies with reputable insurers as are sufficient to protect the Client against any loss or liability which it may incur or suffer arising out of the Agreement, including insurance which covers the Client for any damage or loss for which We are not liable pursuant to the these Terms, and which protects the Client against any accidental loss, damage or destruction to any Client Materials or any other materials of any kind supplied by the Client to Us whilst in Our possession or control. We may at any time request the Client to provide copies or certificates of insurance or other evidence to prove compliance with this clause.
9. STORAGE OF CLIENT MATERIALS
9.1 We shall be under no liability whatsoever in respect of any loss or damage to or destruction of the Client Materials (whether such Client Materials are in Our possession or otherwise) and it is the Client’s responsibility to ensure that it has appropriate back-up copies of all Client Materials.
9.2 In accordance with clause 8 above, the Client shall insure all Client Materials to their full value against all risks.
9.3 The Client shall provide details to Us for the return of the Client Materials within one month from the date of confirmation of a Quote or Contract for Services, as applicable. If the Client does not provide Us with details for the return of the Client Materials, We shall send the Client Materials to Our archive upon completion of the Services and We shall be entitled to charge the Client reasonable storage charges for doing so.
9.4 Where Client Materials are supplied or specific instructions are given by the Client, We accept no liability for any reduction in the quality of the Services caused by defects or errors in or the unsuitability of such Client Materials or by Our use of the Client Materials or adherence to any of the Client’s specific instructions.
10. CUSTOMER INPUT AND ACCESS TO/USE OF OUR PREMISES AND EQUIPMENT
10.1 The Client shall be solely responsible for ensuring that all information, advice and recommendations given to Us either directly or indirectly by the Client or by the Client’s employees, freelancers or agents are accurate, correct and suitable. Acceptance of or use by Us of such information, advice or recommendations shall in no way limit the Client’s responsibility hereunder, unless We specifically agree in writing to accept responsibility.
10.2 The Client hereby undertakes to Us to ensure that all of its personnel (including its employees, freelancers and agents) who at any time have access to any premises occupied by Us or at which any of Our equipment shall be kept, shall at all times:
10.2.1 observe all rules, policies and regulations in force at the applicable premises, including all health and safety regulations and any rules governing the use of equipment and/or facilities at the applicable premises;
10.2.2 keep confidential and not divulge or communicate or make any use of any Confidential Information which the applicable person shall become aware of as a result of being present at the applicable premises.
11.1 We may publicise, advertise and market the Works on Our website(s), social media site(s), blog(s), in pitches to third parties, in connection with any appropriate industry awards, or in any other manner, as We may in Our sole discretion decide, without the prior written consent of the Client.
11.2 The Client hereby grants to Us a perpetual and royalty-free licence to use the Works throughout the world for the purposes of clause 11.1 above and in order for Us to promote Our business by whatever means We sees fit.
12. DATA PROTECTION
12.1 We are an authorised data controller for the purposes of the Data Protection Act 2018 (the “Act”).
12.2 The Client acknowledges that in the course of its dealings with Us, We may acquire personal data which relates to the Client and/or any of its employees, freelancers or agents and the Client hereby consents to Us, in accordance with Our authorisation and the Act, collecting, storing, processing and transferring to third parties such personal data.
12.3 The Client’s consents pursuant to this clause 12 are given by it for itself and on behalf of its employees, freelancers and agents (if any) and the Client hereby warrants to Us that it has the authority to give such consent on behalf of those persons.
If the Client shall become bankrupt, or under the provisions of Section 123 of the Insolvency Act 1986, shall be deemed to be unable to pay its debts or compounds with its creditors or in the event of a resolution being passed or proceedings commenced for the administration or liquidation of the Client (other than for a voluntary winding up for the purpose of reconstruction or amalgamation) or if a Receiver or Manager or Administrative Receiver is appointed of all or any part of its assets or undertaking, We shall be entitled to cancel the Agreement in whole or in part by notice in writing, without prejudice to any right or remedy accrued or accruing to Us.
14. FORCE MAJEURE
In the event of the Services being prevented, delayed, or in any way interfered with by any act of government, war, industrial dispute, strike, breakdown of machinery or equipment, accident, fire or by any other cause beyond Our control, We may, at Our option, suspend performance of or cancel the Agreement, without liability to the Client for any resulting damage or loss, such suspension or cancellation being without prejudice to Our right to recover all sums owing to Us in respect of Services and Works delivered and costs incurred up to the date of suspension or cancellation.
15.1 Variation: No variation of the Agreement (including any of the Services or Works to be provided hereunder) shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.
15.2 Waiver: A waiver of any right or remedy under the Agreement is effective only if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy.
15.3 Severance: If. any provision of the Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
15.4 Relationship: No partnership or joint venture is intended or created by the Agreement and neither party shall have authority to act as agent for, to bind, the other party.
15.5 Rights of third parties: A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
15.6 Notices: Any notice or other communication required to be given under this Agreement or otherwise in writing may be sent by email or by first class pre-paid post to Our registered office obtainable from the Companies House website for the attention of Matthew Berkeley. Any notice sent by first class post shall be deemed received two working days after the date of posting. Any notice sent by e-mail shall be deemed received on the next business day after the date of delivery.
16. GOVERNING LAW AND JURISDICTION
The Agreement or any dispute relating to its subject matter shall be governed by and construed exclusively in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.