TERMS & CONDITIONS
1. Definitions
1.1 “Additional Fees” The fees for Additional Services given in quote agreed in writing to the Client
1.2 “Additional Services” The additional services given in the quote agreed in writing to client
1.3 “Agreement” means these Terms and Conditions together with all appendices
1.4 “Client” means the company addressed in the agreed quote supplied in writing by DH&Co
1.5 “Commencement Date” means the date of production set out in the schedule in the quote agreed in writing with the Client
1.6 “Fee(s)” means the Fee(s) set out in the quote agreed in writing with the Client
1.7 “DH&Co” means DINGLE HERRING & COMPANY LTD, a limited company (Number 10545975) whose registered office is at 180 Piccadilly, London, W1J 9HF, UK
1.8 “Intellectual Property” means copyright and all other intellectual property rights in all copy, artwork, video, photography, or other materials (regardless of form or format) and any other work capable of being subject to any intellectual property right created by DH&Co in its performance of its obligations under this Agreement.
1.9 “Third Party Assigned Intellectual Property” means copyright and all other intellectual property rights in all copy, artwork, copy, artwork, video, photography, or other materials (regardless of form or format) and any other work capable of being subject to any intellectual property right formerly owned by a third party, assigned to DH&Co and used by DH&Co as a result of its performance of its obligations under this Agreement.
1.10 “the Services” means the Services detailed in the quote agreed in writing with the Client
1.11 “the Term” means the period from the Commencement Date until the delivery date set out in the quote agreed in writing with the client
1.12 “the Deliverables” means Films, photographic material, audio material, creative services, or any other deliverable as outlined in the quote supplied to the client as per the quote supplied at the outset of a project
1.13 “Shoot Date” means the first day on which production begins, as per the schedule agreed in the Quote.
2. Interpretation
2.1. Capitalised words in these Contract Terms shall have the meanings given to them in the definition above.
2.2. Where any provision contained in these Contract Terms conflicts with any provision of a written contract between DH&Co and its Client, the written contract shall take precedence unless otherwise expressly agreed in the PIBS.
2.3. A reference to writing or written includes e-mail.
2.4. 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, definition, phrase or term preceding those terms.
2.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2.6. A reference to any party shall include that party’s personal representatives, successors and permitted assigns.
3. Duration and Scope of Work
3.1. These terms shall be deemed to have taken effect from the date of the Client’s confirmation to DH&Co of its appointment upon written confirmation of its quote, and shall continue, unless terminated earlier in accordance with clauses 18 or 19, until the Production has been completed and the Film(s), Photographic Material or other final deliverables are supplied to the Client in accordance with its terms.
2.2. DH&Co shall provide the Production from the dates and for the durations specified in the written schedule for works included in the quote, or these Contract Terms in accordance with the terms of this Agreement.
4. DH&Co Responsibilities
4.1. DH&Co shall produce the Deliverables for use by the Client in any medium anywhere in the world, in accordance with this Agreement, and shall meet any performance dates specified in the written quote supplied or these Contract Terms. Time shall be of the essence in respect of all such dates.
4.2. DH&Co shall:
(i) produce the deliverables and provide such materials and production facilities necessary to produce the Deliverables, in accordance with this Agreement, including the script and treatment specified in the quote and including as may be specified as DH&Co’s responsibility in the quote;
(ii) appoint sufficient resources to perform its obligations under this Agreement including, subject to the prior written approval of the Client, appointing or, at the request of the Client, key individuals, who DH&Co shall ensure shall be suitably skilled, experienced and qualified to produce the Films;
(iii) promptly inform the Client of the absence (or anticipated absence) of any individual and where necessary provide a suitably qualified and experienced replacement, subject to the prior approval of the Client which, in the event of any such absence (or anticipated absence) due to any circumstances beyond the reasonable control of DH&Co, including but not limited to illness, shall not be unreasonably withheld;
(iv) subject to (iii), not make any changes to any individuals without the prior written approval of the Client; and
(v) provide such information to the Client as the Client may reasonably require from time to time, including by way of example only, any potential, additional costs or charges likely to be incurred due to delays due to weather.
4.3. DH&Co shall obtain, and at all times maintain, all necessary licences and consents and shall comply with all relevant legislation, regulations and codes of practice in relation to its obligations under this Agreement.
4.4. DH&Co shall meet regularly and co-operate with the Client and such third parties (including any post-production companies) as the Client may reasonably require in order to ensure that the Film(s) shall be produced in accordance with the obligations of DH&Co under this Agreement and that any changes to the Production that might be required by the Client and agreed by DH&Co are made.
5. Client Responsibilities
5.1. the Client shall:
(i) co-operate with DH&Co in all matters relating to this Agreement
(ii) provide such information as DH&Co may reasonably request in order to assist DH&Co in the provision of the production
6. Client Approvals
6.1. DH&Co shall provide the Deliverables for the Client’s review and approval. If the Client notifies DH&Co that it is not satisfied with any work product, DH&Co shall use all reasonable endeavours to make any changes to the work product that may be required by the Client.
7. Warranties
7.1. DH&Co warrants and represents to the Client that:
(i) it shall perform its obligations under this Agreement with reasonable care and skill and in accordance with good industry practice and the standards expected of a professional and competent production company
(ii) the Production and the Deliverables (excluding film rushes or raw material that are not part of the final Deliverables) shall conform with all Specifications;
(iii) the Production and the Film Deliverables (film rushes or raw material that are not part of the final Film) do not and shall not infringe the Intellectual Property Rights of any third party;
(iv) the personnel (including the Key Individuals) who perform the Production are and shall be competent and suitable in every respect to do so; and
(v) the Production and the Film Deliverables (excluding Film rushes that are not part of the final Film) shall be provided in accordance with all applicable legislation, regulations and codes of practice from time to time in force.
7.2. DH&Co shall indemnify the Client in respect of any damages, losses, claims, demands, actions, proceedings, costs (including reasonable legal and other professional costs) and expenses suffered by the Client resulting from or arising out of any breach of any of the warranties and representations under clause 7.1.
8. Payment
8.1. In consideration of the performance of its obligations under this Agreement by DH&Co, the Client shall pay the Charges in accordance with this Agreement.
8.2. DH&Co shall invoice the Client for the Charges on the date(s) set out in the payment schedule of the Quote.
8.3. If the Client requires DH&Co to carry out any services over and above those specified in this Agreement, the Client will pay any reasonable additional charges agreed in advance in writing.
8.4. the Client shall pay each undisputed invoice which is properly due and submitted to it by DH&Co in accordance with this Agreement to the bank account nominated in writing by DH&Co.
8.5. In the event that the Client fails to make any undisputed payment properly due to DH&Co under this Agreement, DH&Co shall be entitled to charge the Client interest on such overdue sum at the rate of 2% above the base rate of the Bank of England in force from time to time calculated from the due date up to the date of payment.
9. Safekeeping and Title to Deliverables
9.1. Safekeeping and Risk:
(i) DH&Co shall store copies of the Deliverables securely on a Storage Mechanism as agreed with the Client and be responsible for, and shall ensure the safekeeping of, all Deliverables (including the Storage Mechanism) and any derivative materials (whether in rough or final form) during the production and processing of the Film and at all other times, including when they are in the possession or control of a third party at the instruction of DH&Co, up to the Completion Date, and shall advise the Client in writing where all such deliverables are stored.
(ii) Subject to clause (iii) below, immediately after the sooner of the Completion Date or payment of the Charges by the Client pursuant to clause 7, DH&Co shall deliver all Film Deliverables (including the Storage Mechanism) required by the Client either to the Client or third party nominated by the Client in the format required by the Client, and risk in all Film Deliverables shall remain with DH&Co until received by, and in the possession of, the Client or such third party.
(iii) In the event that the Client requires DH&Co to continue to store and safeguard the Film Deliverables beyond the date referred to in clause (ii) above, the Client shall be responsible for and shall insure the safekeeping of the relevant Film Deliverables from that date.
(iv) the Client shall be responsible for and shall ensure the safekeeping of all Client Deliverables, Film Deliverables (including the Storage Mechanism) and any derivative materials (whether in rough or final form), during such time as they are in the possession or control of the Client or a third party at the instruction of the Client.
10. Legal and Technical Requirements
10.1. As between the Client and DH&Co, the Client shall be responsible for ensuring that the content of the Film(s) complies with any relevant legal or regulatory requirements. DH&Co shall ensure that the Film(s) complies with the technical requirements and standards set by Ofcom or its successors in title, programme contractors and/or cinema exhibitors (and, where the Film(s) are for overseas transmission, with all relevant local technical requirements and standards) which are in force at the Commencement Date.
(Note. (i) Client should refer to Clearcast Guidelines, the BCAP Code and the broadcasters’ requirements for the production and delivery of commercials. (ii) Production Company should refer to the broadcasters’ requirements for commercials. (iii) See www.clearcast.co.uk and www.asa.org.uk).
11. Permits and Visas
11.1. DH&Co shall be responsible (unless otherwise agreed in writing) for obtaining all relevant UK and foreign permits, licences and other official authorisations relating to any aspect of the Shoot, including any necessary visas or work permits in respect of personnel hired or employed by DH&Co. DH&Co shall give the Client written notice as far in advance as possible of any such requirements relating to the Client and/or Client personnel and to artists for whom the Client is responsible. DH&Co will not be responsible for delays, difficulties or inability to obtain visas or work permits for artists employed by the Client.
12. Intellectual Property Rights
12.1. DH&Co hereby acknowledges that all IPRs in all Client Materials shall belong to and vest in the Client or the Client as the case may be (or their licensors). the Client hereby grants DH&Co for the Term a non-exclusive, revocable licence to use the Client Materials solely for the purpose of the Production in accordance with this Agreement.
12.2. Subject to clauses 12.3, 12.4 and 12.5 below, DH&Co hereby assigns to the Client effective from the date of payment (and, in the case of copyright, by way of a present assignment of future copyright) with full title guarantee and free of all encumbrances all Intellectual Property Rights throughout the world for all purposes and for their full duration in all Film Deliverables and in all other footage shot by DH&Co in the production of the Film(s) whether or not included in the completed Film(s).
(Note. ensure all parties, including the Client, are aware of what copyright and licence/assignment details have been obtained and that all parties are aware of any restrictions).
12.3. Subject to clause 12.4, the copyright in any animation exclusively designed, created and developed by DH&Co for inclusion in the Film shall remain vested in DH&Co and the provisions of sub-clauses i) to iii) below shall apply:
(i) DH&Co hereby grants to the Client effective from the date of payment, an exclusive, worldwide, perpetual, irrevocable licence (with full right to sublicense) to use such animation both in its entirety and in part in any audio-visual media (and including any lifts and stills for promotional purposes in unpaid media);
(ii) if the Client requires use of such animation in any media and/or for any purpose other than as described in sub-clause i) or in addition thereto, the parties shall negotiate the particular media and/or purpose (together with the relevant additional licence fee, if relevant) and any such additional licence shall apply on the terms of the licence set out in clause i) in respect of such additional media and/or purpose.
12.4. Where DH&Co commissions any material or Film Deliverable, including any animation, characters or models, from a third party for use in connection with the production of the Film(s) or uses any other material or other Film Deliverable which has been created or provided by a third party, DH&Co undertakes to obtain from the third party either an assignment to the Client of such Intellectual Property Rights as may exist in those materials or other Film Deliverables or, if an assignment cannot be obtained, a licence on terms to be approved by the Client to use those materials or other Film Deliverables in the Film(s) and DH&Co shall not incorporate any third party materials in the Film(s) without the prior written approval of the Client.
12.5. DH&Co undertakes to procure and pass on to the Client irrevocable and unconditional waivers of all moral rights (as described in Chapter 4 of Part 1 of the Copyright Designs and Patents Act 1988 or any similar or equivalent legislation anywhere in the world), vesting in all Key Individuals and all other persons, including any third parties, engaged in the creation or production of the Film(s) or any part thereof, including any Film Deliverables.
12.6. Where DH&Co is responsible for the engagement of actors, models or other performers, DH&Co undertakes to obtain all necessary consents, releases, and approvals from such third parties on terms to be approved by the Client to use their contributions in and in respect of the Film(s) and shall provide copies of all such consents, releases and approvals to the Client.
(Note. Consent forms and terms to be provided to DH&Co by the Client with this Agreement).
12.7. If requested by the Client, DH&Co shall promptly take all such actions and execute all such documents as may, in the Client’s reasonable opinion, be necessary to enable the Client or its Client to obtain, defend or enforce the rights intended to be assigned and/or licensed by this clause 12.
12.8. DH&Co shall not, and shall ensure that key individuals and other persons employed or otherwise engaged by DH&Co shall not, create or use any derivative or alternative versions of the Film or any part of it (including, by way of example only, substituting any music featuring in the Film with alternative music) without the prior written consent of the Client.
13. Cancellation by Client
13.1. the Client shall be entitled to cancel the whole or any part of the Production by written notice to DH&Co. In the event of such cancellation, DH&Co shall provide all Film Deliverables as exist to the Client and shall then (other than where cancellation is as a result of a Force Majeure Event or termination of this Agreement under clause 17.1) be entitled to recover, and the Client shall, after receipt of all such Film Deliverables and DH&Co’s invoice, supported by substantiating documentation, pay to DH&Co the following amounts:
(i) third party costs (other than the Director’s fee and Producer’s fee) to which DH&Co is committed in respect of the Production and unable to avoid or otherwise mitigate; and
(ii) an amount in respect of services performed by DH&Co from the Start Date up to the date of notice of cancellation, calculated by reference to the period between the date of notice of cancellation and the intended first Shoot Date as follows:
(a) if the date of cancellation is 20 days or more before the first Shoot Date = 25% of DH&Co’s costs as set out in the Quote;
(b) if the date of cancellation is between 19 days and 11 days before the first Shoot Date = 50% of DH&Co’s costs as set out in the Quote; or
(c) if the date of cancellation is 10 days or less before the first Shoot Date = 100% of DH&Co’s costs as set out in the Quote; and
(iii) an amount in respect of the Director’s fee and the Producer’s fee to which DH&Co is committed and unable to avoid or otherwise mitigate, calculated by reference to the period between the notice of cancellation and the intended first Shoot Date as follows:
(a) if the date of cancellation is 20 days or more before the first Shoot Date = 25% of the Director’s and Producer’s fees as set out in the Quote;
(b) if the date of cancellation is between 19 days and 11 days before the first Shoot Date = 50% of the Director’s and Producer’s fees as set out in the Quote; or
(c) if the date of cancellation is 10 days or less before the first Shoot Date = 100% of the Director’s and Producer’s fees as set out in the Quote.
(Note. Client should ensure it informs its Client of these cancellation provisions should the client request to cancel the whole or part of Production. See also the joint industry guidance and IPA/ISBA Client/Client Creative Services Agreement cancellation provisions).
(For a Production which includes or is entirely comprised of animation, the date from which DH&Co was contracted to commence animation work on the Production shall be substituted for “first Shoot Date” for the purposes of this clause 13.1).
14. Limitation of Liability
14.1 Except in respect of death or personal injury caused by the negligence of DH&Co (for which no limitation applies) DH&Co shall not be liable to the Client for any loss of profit, loss of business, loss of revenue, loss of anticipated savings or loss of use or value or any indirect, special or consequential loss however arising by reason of:
(i) any representation (unless fraudulent); or
(ii) any implied warranty, condition or other term; or
(iii) any duty at common law; or
(iv) any express term of this Agreement.
14.2 Except in the case of death or personal injury caused by the negligence of DH&Co (for which no limitation applies) the entire liability of DH&Co under or in connection with this Agreement shall not exceed twice the Fee payable (or which, but for early termination would have been payable) under this Agreement.
15. Weather Delays
15.1. the Client shall meet such reasonable additional costs as DH&Co incurs directly due to delays caused by weather, within 45 days of DH&Co providing accurate and substantiated invoices and receipts in respect of such costs (together with its mark-up on those costs as set out in the Budget).
15.2. It is for the Client to decide whether or not to insure against the cost of a Weather Day and if it takes out such insurance the fact that it has not been paid by its insurer shall not permit the Client to refuse or delay payment to DH&Co of any sum due to it under 15.1) above.
16. Force Majeure
16.1. Provided it has complied with clause 16.2, if a party is prevented, hindered or delayed from performing any of its obligations under this Agreement by a Force Majeure Event (the “Affected Party”), it shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations by the Affected Party shall be extended accordingly up to a maximum of 30 days and the corresponding obligations of the other party will be suspended and its time for performance of such obligations extended to the same extent as those of the Affected Party.
16.2. The Affected Party shall, as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement and shall use all reasonable endeavours to mitigate the effect of the Force Majeure Event.
16.3. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 30 days, the party not affected by the Force Majeure Event may terminate this agreement and thereby cancel the Production immediately by giving written notice to the Affected Party.
16.4. In the event that this Agreement is terminated and the Production cancelled under clause 16.3, DH&Co shall provide all Film Deliverables as exist to the Client shall, after receipt of all such Film Deliverables (if any) and DH&Co’s invoice supported by substantiating documentation, pay DH&Co (in accordance with the Quote) in respect of work performed by DH&Co up to the date of the notice of termination, together with any unavoidable costs actually and already incurred by DH&Co, including an amount in respect of the Director’s fee and the Producer’s Fee to which DH&Co is committed and unable to avoid or otherwise mitigate.
17. Termination
17.1. the Client may terminate this Agreement forthwith by written notice to DH&Co if DH&Co commits any serious or material breach or any series of breaches of this Agreement, including any failure to comply with any of the performance dates referred to in clause 3.1.
17.2. Either party may terminate this Agreement forthwith by written notice to the other if that other party (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect or (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies, or if either party becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors or has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets or ceases or threatens to cease to carry on business.
17.3. In the event of termination by the Client under clause 17.1) or 17.2) the Client shall be entitled, without prejudice to any other rights it may have, to recover and DH&Co shall on demand pay to the Client all reasonable additional costs which the Client incurs in completing the Production. the Client shall in addition be entitled on demand to immediate delivery of all Film Deliverables, whether or not then complete, including unfinished versions of the Deliverables required by the Client to complete the Production and/or to transmit the Deliverable(s) and all Intellectual Property Rights and title in all such materials shall automatically pass to the Client (to the extent that they have not already done so by virtue of clause 12 or otherwise).
17.4. Any provisions of this Agreement which are expressed to survive its termination or which from their nature or context ought reasonably to survive such termination, shall remain in full force and effect notwithstanding such termination, and termination of this Agreement, however it arises, shall not affect or prejudice the accrued rights of the parties as at termination.
18. Confidential Information
18.1. Each of the parties acknowledges that it is likely to receive or otherwise become aware of Confidential Information of the other party due to its participation in this Agreement.
18.2. Confidential Information shall exclude information which:
(i) at the time of receipt by the recipient is in the public domain;
(ii) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
(iii) is lawfully received by the recipient from a third party on an unrestricted basis; and/or
(iv) is already known to the recipient before receipt under this Agreement.
18.3. Each of the parties undertakes to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information secure. Neither party shall at any time, whether during the Term or at any time thereafter, without the prior written approval of the other party, use, disclose (other than to its employees, officers, agents, sub-contractors or authorised representatives, herein referred to as its “Associates”, to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement), exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement.
18.4. Each party agrees that, save where otherwise expressed in this Agreement, neither party to this Agreement shall obtain any rights in or in respect of the Confidential Information of the other party and each party shall retain full proprietary interests in their own Confidential Information.
18.5. In particular, during and after the Term, DH&Co shall treat in complete confidence all marketing and sales information and statistics relating to the Client’s business.
18.6. DH&Co undertakes not to post or otherwise publish any information regarding the Deliverables, the Client, or the Shoot on its own website or any social media platform without the prior written consent of the Client.
18.7. Neither party shall be in breach of this clause 18 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
18.8. Each party shall indemnify the other in respect of any damages, losses, claims, demands, actions, proceedings, costs (including reasonable legal and other professional costs) and expenses resulting from or arising out of any breach of this clause 18 by the other.
19. Anti-Bribery Requirements
19.1. DH&Co shall:
(i) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and their equivalent in any relevant jurisdiction (“Relevant Requirements”);
(ii) if providing or procuring services from outside of the UK, not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(iii) not do, or omit to do, any act that will cause or lead the Client to be in breach of any of the Relevant Requirements;
(iv) promptly report to the Client any request or demand for any undue financial or other advantage of any kind received by DH&Co in connection with the performance of this Agreement; and have and shall maintain in place throughout the term of this Agreement its own policies and procedures, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate.
19.2. DH&Co shall be responsible for the observance and performance of the Relevant Requirements by any person associated with it who performs services or provides goods in connection with this Agreement, and shall be liable to the Client for any breach by such persons of any of the Relevant Requirements as defined in 21.1.i).
19.3. Breach of this clause 19 shall be deemed a serious breach under clause 18.1.
19.4. DH&Co shall indemnify the Client against any losses, liabilities, damages, costs (including but not limited to legal fees) and expenses incurred by, or awarded against, the Client as a result of any breach of this clause 19 by DH&Co or any breach of provisions equivalent to this clause 19 in any subcontract by any subcontractor of DH&Co.
19.5. For the purpose of this clause 19, the meaning of “adequate procedures” and “foreign public official” and whether a person is “associated” with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause 19 a person associated with DH&Co includes but is not limited to any subcontractor of DH&Co.
20. Governing Law
20.1. This Agreement shall be governed by and construed in accordance with English law. The parties irrevocably agree that the courts of England are to have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement.
20.2 This Agreement comprises the entire agreement of the parties in relation to the subject matter thereof and no amendment thereof shall have any effect unless it is in writing and signed by or on behalf of the Client and DH&Co.
20.3 Neither party to this Agreement shall be entitled to assign, change, licence, sub-contract or otherwise part with possession of the benefit or burden of the whole or any part of this Agreement without the prior written consent of the other party.
20.4 The parties are not partners or joint venturers nor is DH&Co entitled to act as representing itself as agent for the Client.
20.5 Any notice served on any of the parties shall be sent by pre-paid recorded delivery or registered post or by fax to the address above (or such other address as may be advised from time to time) and shall be deemed to have been received within 72 hours of posting or 24 hours if sent by fax to the correct number of the addressee.