1.0: DEFINITIONS AND INTERPRETATION
In this agreement, unless the context otherwise requires, the following expressions have the following meanings:
1.1 “Project”
Means the project detailed in the Scope of Work under the Schedule of this Production Agreement.
1.2 “Producer”
Refers to Blood Orange Ltd with its registered office at Hudsons, High St, Ingatestone, Essex, CM49EZ and registered under company number: 9628926.
1.3 “Client”
Refers to the company/organisation/individual engaging the services of Blood Orange Ltd.
2.0: MUTUAL COOPERATION
2.1
The Producer agrees to use our best efforts to fulfil and exceed the Client’s expectation on the Project. The Client agrees to aid the Producer in doing so by making available to the Producer any information required for the Project and to cooperate with the Producer to complete the Project in a timely manner.
2.2
Functionality or feature requests above and beyond those described in the Project may be considered out-of-scope and an amendment to the Project will be recommended. Projects that remain inactive for longer than 45 days will incur fees to resume work at the discretion of the Producer.
3.0: THE EDITING PROCESS
3.1
The Producer will create a maximum of three edits per video for the Project. The first edit is intended for the Client to review and provide feedback. Revisions will be made to it and a second edit may be issued at the Client’s request. Any changes to this will then be incorporated into a third and final version. Further editing or revisions will be charged at a pre-agreed hourly rate in addition to the agreed budget or fees outlined in the Schedule.
4.0: TERMS OF PAYMENT
4.1
The Client shall pay a deposit equivalent to 50% of the fees payable under this Agreement immediately upon receipt of an invoice from the Producer. Upon completion of the Project, the remaining 50% of the fees shall be payable by the Client within 30 days of receipt of an invoice.
The Client shall supply the Producer with all of the necessary purchase order numbers and other internal information required for invoice processing before the last day of each month in which the Producer carried out work on the Project.
4.2
All drafts supplied by the Producer shall contain watermarks/timecodes. A final clean version of the Project work shall only be delivered to the Client once full and final payment has been made of all fees payable under this Agreement.
4.3
In the event that a payment is late under this Agreement the Client shall pay a late payment charge of £100.00 in addition to interest on the overdue balance at a rate of 3% per day from the due date until payment is made.
4.4
In the event that the Producer incurs legal fees, costs and disbursements in an effort to collect payment of any invoice issued under this Agreement, in addition to interest payable on the unpaid balance, the Client shall reimburse the Producer for these expenses.
5.0: VARIATION, AMENDMENTS AND CANCELLATION
5.1
If the Client wishes to vary or amend any details of the Project they must notify the Producer in writing (email is acceptable) as soon as possible. The Producer shall endeavour to make any required changes and any additional costs thereby incurred shall be invoiced separately or invoiced as an addition to the final invoice, whichever is most suitable to the Producer.
5.2
If the Client wishes to cancel/rearrange any element of the Project, the following cancellation policy will be enforced.
Notice is calculated based on the date of the first engagement day. Build days, recce days, pre-light days, shoot days, strike days and edit days, are all considered as an engagement day. All seven days of the week count towards the notice period. For the purpose of calculating the number of days’ notice given, the day on which notice is given is included, but the engagement day is not.
a) 7 or more days prior to the engagement: no cancellation fee applies
b) 6–4 days prior to the engagement: the Client shall pay 50% of the Project fees
c) 3–2 days prior to the engagement: the Client shall pay 75% of the Project fees
d) On the day prior to or on the day of the engagement: the Client shall pay 100% of the Project fees
In the event of a cancellation, regardless of the notice period given, any costs incurred by the Producer relating to the project will be chargeable to the Client.
5.3
If, due to circumstances beyond control of the Producer, it has to make any change in the arrangements relating to the completion of the Project it shall notify the Client immediately.
5.4
Licensed audio that is used on edits but is then discarded will require full payment by the Client.
6.0: DATA PROTECTION
6.1
Both parties will comply with all applicable requirements of data protection legislation.
6.2
The parties acknowledge that for the purposes of data protection legislation, the Client is the controller and the Producer is the processor.
6.3
The Producer shall process the Client’s personal data only to the extent, and in such a manner, as is necessary for the Project and shall not process the Client’s personal data for any other purpose.
7.0: CONFIDENTIALITY
7.1
The parties acknowledge a duty during the term of this Agreement not to disclose without the other’s prior written permission any confidential information either concerning the other’s business.
8.0: INTELLECTUAL PROPERTY RIGHTS
In this clause,
“Background IPR” means any intellectual property rights, excluding Foreground IPR, owned or controlled by any party arising before the Commencement Date, or in parallel independently of the Project, which is necessary for completion of the Project.
“Foreground IPR” means any intellectual property rights designed, commissioned, obtained, found, produced, devised, developed, or made during or generated by either party during the term and under the terms of this Agreement.
8.1
Each party shall remain the exclusive owner of its Background IPR.
8.2
The Producer shall own the Foreground IPR but the legal and beneficial ownership of the Foreground IPR shall transfer to the Client with full title guarantee upon full payment by the Client of all amounts due under this Agreement. The Client shall pay any costs as required to vest such ownership of the Foreground IPR in the Client.
8.3
The Client shall be responsible for obtaining all of the necessary licences, permissions or releases required under this Agreement and any associated costs.
8.4
The Client shall fully indemnify the Producer against all actions, claims, proceedings, damages, losses, costs, and expenses arising from any actual or alleged infringement of third party intellectual property rights arising from the Producer’s possession of or use of any of the Client’s Background IPR or any other text, images, audio, music, artwork or material as requested by the Client in accordance with the provisions of this Agreement.
8.5
The Client grants the Producer permission to use the Client’s name, trademarks, service marks, logos and trade names for the Producer’s marketing or publicity purposes.
9.0: LIMITATION OF LIABILITY
9.1
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 may not be excluded or limited as a matter of law. Subject to this:
9.2
The Producer’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed 150% of the total fees payable by the Client under this Agreement.
9.3
The Producer will not be liable under this Agreement for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
10.0: TERM AND TERMINATION
10.1
This Agreement shall become effective as of the Commencement Date and shall continue until terminated by either party upon giving not less than 60 days’ notice in writing to the other party.
10.2
Either party to this Agreement may immediately terminate the Agreement if the other party defaults in the performance of any of its material duties and obligations and the default is not cured within thirty (30) days of the receipt of notice of said default, or if the default is not reasonably curable within said period of time, unless the defaulting party commences cure within said period of time and diligently proceeds to cure the default. In addition, either party may immediately terminate this Agreement by giving written notice to the other party if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, if the other party makes an assignment for the benefit of creditors, if a trustee, or similar agent is appointed with respect to any property or business of the other party, or in the case of the Client, if the Client materially breaches its obligations to make payment pursuant to this Agreement.
10.3
Any non-cancellable materials, services, etc., that the Producer has properly committed to purchase for the Project or the Client, (either specifically or as part of a plan such as modules, photography and/or external services) shall be paid for by the Client, in accordance with the provisions of this Agreement. The Client agrees to use its best efforts to minimise such liabilities immediately upon written notification from the Client. The Producer shall provide written proof, upon request of the Client, that any such materials and services, are non-cancellable.
11.0 GENERAL PROVISIONS
11.1
This Agreement is governed by the law of England and Wales and is subject to the exclusive jurisdiction of the courts of England and Wales.
11.2
The parties each individually represent and warrant that each has full power and authority to enter into this Agreement and to perform all of their obligations hereunder without violating the legal or equitable rights of any third party.
11.3
Except as otherwise set forth or referred to in this Agreement, this Agreement constitutes the sole and entire Agreement and understanding between the parties hereto as to the subject matter hereof, and supersedes all prior discussions, agreements and understandings of every kind and nature between them as to such subject matter.
11.4
If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, then that provision will be fully severable. In such instance, this Agreement will be construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement will remain in full force and effect.
11.5
The Client shall not assign, transfer, novate, charge or deal in any other manner with this Agreement or any of its rights under it without the prior written consent of the Producer, such consent not to be unreasonably withheld.
11.6
The Producer may assign, transfer or otherwise dispose of or deal with any or all of its rights or obligations under this Agreement or any part of this Agreement.
11.7
If either party wishes to change this Agreement, the change must be in writing and must be signed by both parties.
11.8
Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement caused by circumstances beyond the reasonable control of either party.
11.9
The parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to this Agreement or any breach of it. If any such dispute cannot be settled amicably through ordinary negotiations between the parties, or either or both is or are unwilling to engage in this process, either Party may propose to the other in writing that structured negotiations be entered into with the assistance of a fully accredited mediator before resorting to litigation.