FRESH GROUND FILMS AGREED TERMS
1. About Us
1.1 Company details. Fresh Ground Films (company number 11461676) (we and us) is a company registered in England and Wales and our registered office is at C/O The Hay Group Berkeley House, Dix’s Field, Exeter, Devon, England, EX1 1PZ. We operate the website www.freshgroundfilms.co.uk
1.2 Contacting us. To contact us telephone the team on 01392 325973 or e-mail [email protected] How to give us formal notice of any matter under the Agreement is set out in clause 16.2.
1.3 Public liability insurance. We maintain public liability insurance to a maximum of two million pounds in respect of any act or omission by us.
2. Our Agreement with you
2.1 Offer. Once a quote is agreed between us, it shall be incorporated into a briefing document outlining:
a) aims;
b) creative and editorial vision;
c) delivery date;
d) confirmation of the services to be provided by us (Services);
e) materials to be created or produced by or on behalf of us for you in the course of providing the Services (Deliverables)
Hereinafter known as the Briefing Document.
2.2 Acceptance. Once a Briefing Document is signed by each of us, this creates a legally binding agreement (Agreement) for us to provide you the Services, including production of the Deliverables, in consideration of your payment of the Charges. The date of the Agreement shall be known as the Commencement Date.
2.3 Acceptance by Conduct. In absence of a signed Briefing Document under clause 2.1, conduct evidencing your intention to accept the Briefing Document shall be a sufficient substitute for a signed Briefing Document for the purpose of forming an Agreement.
2.4 These Terms. For the avoidance of doubt, these terms and conditions shall apply to and be incorporated into the Agreement. They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Raw Footage and Edit Files. The Deliverables will exclude:
a)any unprocessed footage created or produced by us or on our behalf in the course of providing the Services (Raw Footage); and
b)files created by us during the production process, which can show or from which can be deduced the editing processes and methodologies used by us to create the Deliverables (Edit Files);
unless expressly listed otherwise in the Briefing Document
2.6 Term of this Agreement. The term of this Agreement is the period from the Commencement Date until the Completion Date or (if earlier) termination of the Agreement.
3. Our services
3.1 Our obligations. We will:
a)render the Services in accordance with the Briefing Document;
b)be responsible for arranging and supervising the performance of the Services and delivery of the Deliverables;
c)at various stages, submit the scripts, voices, storyboards, design and music (as applicable) to you for your acceptance;
d)perform the Services in willing co-operation with you; and
e)not, without your prior written consent, order incur any liability on your behalf nor pledge credit nor hold ourselves out as being entitled to do so other than as is contemplated in this agreement or the Briefing Document.
3.2 Changes to Briefing Document. We reserve the right to amend the specification of the Services or the Deliverables outlined in the Briefing Document if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services or Deliverables.
3.3 Creative Control. You will, in your absolute discretion but with full discussion with us and giving good faith consideration to our views as a professional production company, have final editorial and artistic control over any Deliverables (Creative Control). For the avoidance of doubt, if exercising your Creative Control gives rise to a change in the description of the Services and/or Deliverables the Briefing Document may be amended accordingly and additional Charges may be payable.
3.4 Requests for amendments to Deliverables. Requests for amendments to Deliverables made before the Completion Date that fall out of scope of the Briefing Document will not form part of the Charges and may be additionally chargeable. In addition, such amendments may form the subject matter of a separate Briefing Document and as such will form a separately enforceable contract between us.
3.5 Reasonable care and skill. We warrant to you that the Services will be provided using reasonable care and skill.
3.6 Time for performance. We will use all reasonable endeavours to meet any performance dates specified in the Briefing Document, but any such dates are estimates only and failure to perform the Services, or deliver the Deliverables, by such dates will not give you the right to terminate the Agreement.
3.7 Deliverables. Further to delivery of the Deliverables by us to you, you will have five business days to accept them unless otherwise agreed between us. If you do not accept the Deliverables, or request any amendment to the Deliverables within five business days of delivery or such other period as we shall have expressly agreed (“the Acceptance Period”), acceptance shall be deemed to have occurred and the Deliverables accepted on the expiry of the Acceptance Period.
3.8 Completion. The date of completion shall be the later of:
a)the date of acceptance or deemed acceptance of the Deliverables; and
b)the date of completion of the Services;
(hereinafter known as Completion Date).
3.9 Amendments or Additional Services following Completion. We reserve the right to apply an additional charge for:
a)any amendments requested to the Deliverables; or
b)any additional Services
requested by you after the Completion Date. This clause applies to work both within and out of the scope of the Briefing Document. Our agreement to undertake any additional amendments or work after the Completion Date shall create a separately enforceable contract between us, on terms equal to this Agreement.
4. Your Obligations
4.1 It is your responsibility to ensure that you:
a) provide us with all necessary acceptances or approvals, scripts, footage, documents, branding images and materials, images and materials, performances and services to be provided by you, or on your behalf (including by talent, contributors, consultants or freelancers procured by you) to us relating to the Services and/or Deliverables, as specified in the Briefing Document or as otherwise agreed between us from time to time, including your name and branding provided by you to us (Input Materials);
b) inform all affected individuals of proposed filming and obtain, in our sole opinion, relevant and sufficient release forms and privacy notices duly signed by all such persons prior to proposed filming;
c) where necessary instruct your personnel to assist and support us wherever possible, to comply with our reasonable requests, and in particular to provide such information as we may request; and
d) either own, or have obtained and paid for licences to use, all Input Materials provided to us by you in connection with the Services and/or Deliverables.
4.2 If our ability to perform the Services and/or Deliverables is prevented or delayed by any failure by you to fulfil any obligation listed in clause 4.1 (Your Default):
a )we will be entitled to suspend performance of the Services and/or Deliverables until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the contract under clause 14 (Termination);
b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default
5. Charges
5.1 We reserve the right to request a security deposit not exceeding 50% of the total Charges (Deposit) which shall become payable on the Commencement Date.
5.2 In consideration of us providing the Services and/or Deliverables you must pay our charges (Charges) in accordance with this clause 5.
5.3 The Charges are those prices quoted in the Briefing Document or any additional agreed charges.
5.4 If you wish to change the scope of the Services and/or Deliverables after acceptance of the Briefing Document by you but before the Completion Date, and we agree to such change, we will modify the Charges accordingly. In addition, such amendments may form the subject matter of a separate Briefing Document and as such will form a separately enforceable contract between us.
5.5 Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services and/or Deliverables you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
6. How to pay
6.1 Unless otherwise agreed between us, we shall submit our invoice on:
a) the Completion Date;
b) expiry of your notice to us pursuant to clause 14.1; or
c) the date of delivery of our notice to you under 14.3
deducting any Deposit already held by us, and you shall pay the same within 30 days of the date of the invoice.
6.2 If you fail to make a payment under the Agreement by the due date, then, without limiting our remedies under clause 14 (Termination), you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.2 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.3 All amounts due under the Agreement, must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. Complaints
If a problem arises or you are dissatisfied with the Services and/or the Deliverables, please contact us by email or telephone to discuss the issue.
8. Intellectual property rights
8.1 For the purpose of this Agreement, intellectual property rights shall be all copyright, neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, format rights, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world (Intellectual Property Rights).
8.2 Client Materials. In relation to any material provided by you to us for our use in the Deliverable (Client Materials):
a) you and your licensors shall retain ownership of all Intellectual Property Rights in the Client Materials; and
b)you grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this agreement for the purpose of performing the Service or providing the Deliverable to the you.
8.3 You
a)warrant that the receipt and use of the Client Materials by us and our permitted sub-licensees shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
b)shall indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred or paid by us arising out of or in connection with any claim brought against the us for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, our receipt or use of the Client Materials.
8.4 Assignment of Deliverables. Subject to payment in full of all monies due to us by you in accordance with clause 6.1, and save as provided for in clause 8.7, we shall assign, by way of present and future assignment with full title guarantee to you all Intellectual Property Rights in the Deliverables subject to any rights in any Third Party Materials referred to in clause 8.7. For the avoidance of doubt, this excludes Our IPR, any Raw Footage and the Edit Files unless otherwise agreed between us in accordance with clause 8.6.
8.5 Our IPR. We may use our logo, business name or domain name (Our IPR) in the Deliverable to apply a credit in accordance with clause 9. Upon assignment in accordance with clause 8.3, we hereby grant you a limited, non-exclusive, non-transferable, revocable, worldwide licence to use any of Our IPR contained within the Deliverable for the purposes of promoting the Deliverable. This licence shall be immediately revoked in the event that you, in our sole opinion, materially edit the Deliverable following assignment.
8.6 Raw Footage and Edit Files. You acknowledge that the Raw Footage and the Edit Files reflect the know-how, methodology and intellectual capital that we have developed or acquired prior to performing the Services. As a result, the Intellectual Property Rights in the Raw Footage and the Edit Files are to be retained by us. If you wish to acquire an assignment of all Intellectual Property Rights in the Edit Files or the Raw Footage, such acquisition shall be subject to payment of a fee and separate terms to be agreed by us.
8.7 Third Party Materials. Where a third party owns or licenses any material used in connection with the Deliverables (Third Party Materials) we will notify you in writing:
a)whether an assignment to you of the relevant proposed Third-Party Materials can be obtained and the cost of obtaining it; and
b)if an assignment of the relevant proposed Third-Party Materials cannot be obtained or you do not agree to the proposed cost of an assignment, the cost of obtaining a licence of such materials for the your use of the Deliverable.
8.8 Following notice to you under clause 8.7, you must notify us as soon as reasonably practicable in writing whether we are required to obtain an assignment (if available) or whether you wish to be granted a licence directly from that particular third party. We will assist you in obtaining such licence or assignment directly from that particular third party. You will be responsible for paying the costs of such assignment or licence, any costs associated with or arising out of an unreasonable delay to your notification under this clause 8.8 and any legal costs reasonably required to secure such rights, as appropriate.
8.9 We:
a)warrant that the receipt, use and onward supply of the Deliverables by you and your permitted sub-licensees shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
b)subject in all cases to the limitation set out at clause 11.3, shall indemnify you against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other reasonable professional costs and expenses) suffered or incurred or paid by you arising out of or in connection with any claim brought against you for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, your receipt or use of the Deliverables (excluding the Client Materials)
8.10 Moral Rights. We hereby waive the benefits of any provision of law relating to so-called “moral rights” (including without limitation any of our rights under section 77 to section 85 inclusive of the Copyright Designs and Patents Act 1988) and any similar laws of any jurisdiction in relation to the Deliverables. We further agree to procure the waiver of all such rights in your favour and your successors in title by all persons engaged or employed by us and who contribute to the Deliverables and to whom such rights may accrue.
8.11 Our own promotion. We shall retain the right to use the Deliverables and information relating to the broad nature of the Services, for our own promotional use, including presentations, showreels and on our website and social media platforms. We may, at our discretion, agree to not exercise our right if you are able to reasonably evidence that such use may be detrimental to your reputation or commercial interests
9. Credit
9.1 Subject to us not being in breach of any of our material obligations under this agreement, you authorise us to insert credit:
a) for us, as the producer of the Deliverables, with our name, logo and, if appropriate, web address included; and
b)for any Third Party Material owner or licensor, where such credit is a legal condition of use or the license.
10. How we may use your personal information
10.1 We will use any personal information you provide to us to:
a)provide the Services and/or Deliverables;
b)process your payment for the Services and/or Deliverables; and
c)inform you about similar services that we provide, but you may stop receiving these at any time by contacting us.
10.2 Further details of how we will process personal information are set out in our privacy notice, as amended from time to time. We shall inform you in writing if we amend our privacy notice.
11. Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
11.1 Nothing under this Agreement limits any liability which cannot legally be limited, including liability for:
a)death or personal injury caused by negligence;
b)fraud or fraudulent misrepresentation; and
c)breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.2 Subject to clause 11.1, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:
a) loss of profits;
b) loss of sales or business;
c) loss of agreements or contracts;
d) loss of anticipated savings;
e) loss of use or corruption of software, data or information;
f) loss of or damage to goodwill; and
g )any indirect or consequential loss.
11.3 Subject to clause 11.2, our total liability to you arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to 100% of the total Charges paid under the Agreement.
11.4 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
11.5 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of you having grounds to make a claim in respect of the event and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
11.6 This clause 11 will survive expiry or termination of this Agreement.
12. Confidentiality
12.1 We each undertake that we will not at any time disclose to any person any confidential information concerning one another’s business, affairs, customers, clients or suppliers, except as permitted by this Agreement.
12.2 Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations under this Agreement or legal obligations.
13. Postponement
13.1 If you wish to postpone the provision of the Services and/or Deliverables (or any part of them), you must give us at least one week’s prior notice. If you fail to provide such notice, you shall pay all Charges in respect of the Services and/or Deliverables (which shall include without limitation all costs associated with Third Party Materials, crew and personnel costs, where such crew and personnel cannot be reasonably redeployed) up to the value of the Charges stated in the Briefing Document.
13.2 You will be liable to pay further Charges arising from rescheduling the Services and/or Deliverables.
13.3 We may postpone the Services and/or Deliverables for a reasonable period, having due consideration of any deadlines set out in the Briefing Document, on one week’s notice to the Client, without being in breach of this Agreement.
14. Termination
14.1 You may terminate this agreement at any time by giving us four weeks written notice.
14.2 On termination under clause 14.1, we will be entitled to receive payment for:
a) all sums that we are, up to the date of termination, contractually obligated to pay to any third parties; and
b) all of the work reasonably carried out in respect of the Services and/or Deliverables up to the date of notice, as set out in the Briefing Document or, if a charge has not been expressly defined within the Briefing Document, at a pro-rata rate which we shall in our sole discretion determine.
14.3 Without limiting any of our other rights, we may suspend the performance of the Services and/or Deliverables, or terminate the Agreement with immediate effect by giving written notice to you if:
a) you commit a material breach of any term of the Agreement;
b) you fail to pay any amount due under the Agreement on the due date for payment;
c) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business;
d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Agreement has been placed in jeopardy.
14.4 Termination of the Agreement will not affect your or our rights and remedies that have accrued as at termination.
14.5 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
15. Events outside our control
15.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Agreement that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
15.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Agreement:
a)we will contact you as soon as reasonably possible to notify you; and
b)our obligations under the Agreement will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services and/or Deliverables with you after the Event Outside Our Control is over.
15.3 You may cancel the Agreement affected by an Event Outside Our Control. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges reasonably and actually incurred us by in performing the Services and/or Deliverables up to the date of the occurrence of the Event Outside Our Control.
16. Communications between us
16.1 When we refer to “in writing”, this includes email.
16.2 Any notice or other communication given by one of us to the other under or in connection with the Agreement must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
16.3 A notice or other communication is deemed to have been received:
a) if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
c) if sent by email, at 9.00 am the next working day after transmission.
16.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
16.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
17. Archiving
17.1 As part of the Services and in consideration of the Charges being paid, we shall store the Deliverables, Raw Footage and the Edit Files in our archives for two years after the earlier of: (a) Completion Date; (b) termination; or (c) expiry of the Agreement (Initial Archive Period).
17.2 After the Initial Archive Period, storage of the Deliverables, Raw Footage and Edit Files can be extended at your request for an additional annual fee payable by you. Where storage is not extended, we will destroy items at our discretion.
18. General
18.1 Assignment and transfer.
a) We may assign or transfer our rights and obligations under the Agreement to another entity but will always notify you in writing.
b)You may only assign or transfer your rights or your obligations under the Agreement to another person if we agree in writing.
18.2 Variation. Any variation of the Agreement only has effect if it is in writing and agreed by you and us.
18.3 Full effect. We shall promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this agreement, and shall use all reasonable endeavours to procure that any third parties shall also do so as necessary. You shall reimburse us for the reasonable costs properly incurred by it in complying with its obligations under this clause.
18.4 Entire agreement. The Agreement is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Agreement.
18.5 Waiver. If we do not insist that you perform any of your obligations under the Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
18.6 Severance. Each paragraph of the Agreement operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
18.7 Third party rights. The Agreement is between you and us. No other person has any rights to enforce any of its terms.
18.8 Governing law and jurisdiction. The Agreement is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Agreement to the exclusive jurisdiction of the English courts.
