TERMS OF SERVICE
Firefly Film Productions Limited (FF)
Our Standard Ts and Cs for client projects
1.1 In these Ts and Cs, the following definitions apply:
Agreement: The contract between you and us for the work outlined on the Statement of Work together with any Appendices (SoW) on the terms set out in these Ts and Cs.
Client/you: as set out in the SoW.
Content: all information and materials created by us for use within the Project, including any drafts, specimens, samples and prototypes.
Force Majeure Event: any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was not reasonably avoidable, including strikes, lock-outs or other industrial disputes, failure of energy sources, information technology system, communication or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, shortages of supplies, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemic or pandemic or similar, natural disasters or extreme adverse weather conditions or default of suppliers or subcontractors.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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 rights to claim priority from, such rights 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.
FF Equipment: any equipment, including tools, systems, cabling or facilities, provided by us or our subcontractors and used directly or indirectly in the delivery of the Project.
Production Budget: the monies payable to us as set out in the Production Budget.
Project Order Form (SoW): the detailed plan describing the Project and the services we are providing to you and for how much, signed and duly completed by you and us.
Project: the project described in the SoW with reference to any relevant Appendix.
Your Equipment: any equipment, systems, cabling or facilities provided by you, the client, and used directly or indirectly by us to deliver the Project.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 A reference to writing or written includes e-mail.
1.3 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. LEGALLY BINDING AGREEMENT
2.1 When the SoW is signed by both of us, the SoW together with any Appendices and these Ts and Cs will form a legally binding agreement between us.
2.2 This Agreement constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
2.3 In the event of any conflict between the SoW and these Ts and Cs, the express terms of the SoW shall prevail.
2.4 Any changes to the signed SoW or these Ts and Cs must be agreed in writing and signed by both of us. We reserve the right to charge you additional fees to reflect our cost in implementing any changes requested by you.
2.5 You acknowledge that our provision of the Project to you is on a non-exclusive basis and does not prohibit us from providing our services to third parties,provided that we shall not do so in a manner that would impair our ability to deliver the Project in accordance with this Agreement.
3. HOW WE WORK
3.1 Subject to timely payment of the Production Budget, we shall use our reasonable endeavours to complete the Project in accordance with the SoW in all material respects. Please note that dates quoted in the SoW are approximate and time is not of the essence.
3.2 You agree to:
(a) give us a clear brief in connection with the Project;
(b) be reasonably available to work with us and otherwise co-operate as regards completing the Project within our agreed timescale. You agree to help us by promptly making available information that we request. We shall not be liable for any delay in completing the Project to the extent caused by a Force Majeure Event or your failure to provide us with requested information relevant to the Project in a timely fashion;
(c) give us and anyone we involve in the Project, access to your premises, data, office accommodation and any other facilities reasonably required by us for the purpose of the Project;
(d) provide in a timely manner, such materials and other information that we may require for completion of the Project, and ensure that it is accurate in all material respects;
(e) assist as reasonably necessary with the production of the Project.
3.3 If you wish to incorporate any work belonging to third parties in the Project, you agree to pay all necessary fees and to provide all necessary assistance to enable us to obtain a licence to use the Intellectual Property Rights relating to such third party work for use within the Project.
3.4 If FF’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, FF shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
3.5 The Client shall be liable to pay to FF, on demand, all reasonable costs, charges or losses sustained or incurred by FF (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client's fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Agreement, subject to FF confirming such costs, charges and losses to the Client in writing.
4. Production Budget
4.1 In consideration of our implementation of the Project, you shall pay us an amount equivalent to the Production Budget in accordance with the payment schedule set out in the SoW.
4.2 Those items on the Production Budget that attract VAT and any Fees, are exclusive of VAT and subject to supply of a VAT invoice by us, you will pay all VAT payable on the supply of our services.
4.3 Time of payment is of the essence and you agree to pay all fees due within 14 days of receipt of invoice from us in accordance with the provisions of the SoW.
4.4 Without prejudice to any other right or remedy that we may have, if you fail to pay us any element of the Budget by any relevant due date:
(a) You shall pay interest on the overdue amount at the rate of 4% per annum above Barclay's base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount; and
(b) we may suspend all further implementation of the Project and/or terminate this Agreement and/or terminate any other agreements governed by these Ts and Cs that we have with you;
(c) we can require immediate payment in full of all other amounts owed by you to us (whether or not such amounts have otherwise fallen due for payment); and
(d) we can require payment in advance in respect of any other agreements or for completion of the Project.
4.5 All sums payable to us under this Agreement shall become due immediately on its termination, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
4.6 You shall pay all amounts due under this Agreement in pounds sterling and without any deduction or withholding except as required by law and you shall not be entitled to assert any deduction, discount, abatement, credit, set-off, or counterclaim against us in order to justify withholding payment of any such amount in whole or in part. We may at any time, without limiting any other rights or remedies we may have, set off any amount owing to us by you against any amount payable by us to you.
4.7 Any part of the Production Budget that remains unspent shall be retained by FF providing that FF has completed the Project in accordance with the SoW.
5. CREDIT
5.1 The Client authorises FF to insert, or have the appropriate third party insert, credit as the producer of the film on the end credits of the film, with its name [and web address] printed on all hard copies of the film and included alongside all online versions of the film.
6. Intellectual property rights
6.1 On receipt of payment in full of the Production Budget, FF hereby assigns to the Client absolutely:
(a)the entire copyright throughout the world in all media whether now known or hereafter developed for the full period of copyright and all renewals, revivals, reversions and extensions thereof (and thereafter, in so far as it is able, in perpetuity) including so called rental and lending rights and, to the extent relevant, by way of present assignment of future copyright; and
(b)all other rights whatsoever including all consents under Part II of the Copyright, Designs and Patents Act 1988 or any statutory modification or re-enactment thereof for the time being in force (CDPA) in the Content, and FF hereby agrees to procure the giving of similar consents from all persons engaged or employed by FF and whose performances or intellectual property rights are incorporated in the Content.
6.2 Payment of all monies owed to FF under this Agreement shall represent a buy-out of all rights granted to the Client under clause 6.1 of this Agreement, including all so-called rental and lending rights, and neither FF nor any other person or corporate body employed or engaged by FF in the production of the Project shall be entitled to any payments whether by way of profit share, use fees, residuals or any other type of payment in respect of the exploitation of the Project.
6.3 The Client agrees that FF may use the Client's name and intellectual property rights to the extent necessary for the purpose of providing the Project, such as by including them on Content, referring to them in paperwork and in discussions with third parties in order to indicate the nature of the Project, and including them in FF’s own promotional materials and showreels in accordance with clause 6.4. The Client warrants that no such use shall infringe the rights of any third party.
6.4 FF shall have the non-exclusive right to use extracts from the Content for its own promotional use in internal and client and prospective client presentations, showreels and on FF’s website. Each such extract must be no longer than [two] minutes in length, and the extracts used in any one promotional item must not exceed [10] minutes cumulatively. The content of the extract and any statement made about the extract, the Project or the Client shall be approved in advance by the Client.
6.5 In the event that you provide any material to us for inclusion in the Project, you will identify this in an email and you hereby grant to us a non-exclusive, perpetual, royalty-free licence in the Intellectual Property Rights of those materials, to use those materials, alongside the Content and/or for the purpose of the Project.
6.6 We both warrant to the other that we have the power and authority to enter into this Agreement and to carry out our respective obligations and that we will not provide any content for incorporation in the Project which:
(a) Is likely to be considered defamatory, offensive, discriminatory, lewd and/or illegal; or
(b) as far as are aware, infringes the Intellectual Property Rights of any third party.
We hereby indemnify each other in respect of any action, proceedings or claim against the other party which arises as a result of the other’s breach of this clause, including any damages, costs and liabilities awarded by a court, tribunal, or administrative body against us (anywhere in the world) and in respect of our costs in defence thereof (including legal and other professional fees on an indemnity basis).
6.6In order to receive the indemnification under clause 6.5, the indemnified party shall promptly notify the party in breach of any claim.
7. Mutual Confidentiality
7.1 We both agree not to disclose to any person any technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed by either of us (or our agents, consultants or subcontractors) to the other party or any other confidential information concerning our businesses or its products which we may obtain, except as permitted by clause 7.2.
7.2 Either of us may disclose the other’s confidential information:
(a) to our employees, officers, representatives or advisers who need to know such information for the purposes of implementing the Project and we will ensure that any employees, officers, representatives or advisers to whom we disclose the other party's confidential information will comply with this clause 7; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3 We both agree that we will not use each other’s confidential information for any purpose other than to perform our obligations under this Agreement.
7.4 All materials, equipment and tools, drawings, specifications and data supplied by us to you shall, at all times, be and remain the exclusive property of FF, but shall be held by you in safe custody at your own risk and maintained and kept in good condition by you until returned to us on completion of the Project, and shall not be disposed of or used other than in accordance with our written instructions or authorisation.
8. Limitation of liability – PLEASE READ THIS CLAUSE CAREFULLY
8.1 Nothing in this Agreement limits or excludes our liability for:
(a) death or personal injury caused by our negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
8.2 Subject to clause 8.1, we shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
(a) loss of profits;
(b) loss of sales or business and/or business opportunity;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information;
(g) any indirect or consequential loss.
8.3 Subject to clause 8.1 and clause 8.2, our total liability to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to our costs and expenses incurred by you in obtaining replacement services of similar description and quality in the cheapest market available less any outstanding element of the production fee that you would have paid us had we completed the Project in accordance with the SoW.
8.4 Subject to clause 8.1 and clause 8.2, our liability for damage to your property (and any person to whom you make available the Project) shall be limited to the higher of (i) 3 times our production fee payable by you under the Production Budget (exclusive of VAT) and £15,000 in respect of any one event or series of connected events and (ii) £20,000 in respect of the total of all such claims. [Nathan: Does this work with your insurance cover?]
8.5 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
9. WHEN CAN WE TERMINATE THE AGREEMENT BEFORE COMPLETION OF PROJECT
9.1 If you become subject to any of the events listed in clause 9.2, or we reasonably believe that you are about to become subject to any of them and we notify you accordingly, then, without limiting any other right or remedy available to us, we may terminate the Agreement and/or exercise any of the rights referred to in clause 4.4 (b) (c) and (d) and all outstanding Payments shall become immediately due.
9.2 For the purposes of clause 9.1, the relevant events are:
(a) you fail to pay any amount due under this Agreement on the due date for payment and remain in default not less than 14 days after being notified in writing to make such payment; or
(b) you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business; or
(c) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over you; or
(d) you suspend or threaten to suspend, payment of your debts or you are unable to or admit inability to pay your debts as they fall due within the meaning of section 123 Insolvency Act 1986 or a liquidator is appointed in respect of you;
(e) any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2 (b) to (d) inclusive.
10. Consequences of termination
10.1 On termination or expiry of this Agreement:
(a) the Client shall immediately pay to FF any sum owed to FF and any relevant interest;
(b) the following clauses shall continue in force: clause 6 (Intellectual property rights), clause 7 (Mutual confidentiality), clause 8 (Limitation of liability), this clause 10 (Consequences of termination) and clause 19 (Governing law and jurisdiction).
10.2 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
11. Force majeure
Neither us nor you shall be liable for any failure or delay in performing our respective obligations under the Agreement (save in respect of the payment of any sum due) to the extent that such failure or delay is caused by a Force Majeure Event.
12. Waiver
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13. Rights and remedies
Except as expressly provided, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14. NOTICES
14.1 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at the address given on the SoW or such other address as may have been specified in writing. Notices served by email shall be deemed delivered at 9am on the working day after transmission.
14.2 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
15. Severance
15.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
16. Assignment and other dealings
16.1 This Agreement is personal to you and you may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
16.2 We may at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of our rights and obligations under this Agreement.
17. No partnership or agency
17.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between either of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
18. Third party rights
No one other than a party to this Agreement shall have any right to enforce any of its terms.
19. Governing law AND JURISDICTION
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).