E26 – DIGITAL RESOURCES – TERMS OF BUSINESS

TERMS OF BUSINESS (3rd October 2015)

These terms as updated from time to time (the “Terms”) are the basis on which Element 26 Limited, a company incorporated in the UK with registration number 8563991 and registered office 8 City Road, London, EC1Y 2AA, (“we”, “us” or “our”) agrees to undertake a Project for the Client (“you”, “your”). Headings are included for ease of reference only.  Definitions of capitalised words are attached at the end of these terms.

 

 

  • General

 

    1. The details of the Services and the Deliverables to be supplied during a Project, and their costs (together the “Price”), and the territory in which you shall be entitled to use the Deliverables (the “Territory”) are indicated in a Proposal.
    2. The Proposal is an estimate for the Project and is not an offer capable of acceptance. It is a document generated for discussion purposes and once details of the Project are firmed up, we will incorporate the Proposals into an offer, being an Order for your review and acceptance.
    3. Your acceptance of our Order, by signing it, by paying the Deposit, or by any other clear and unequivocal communication or conduct, constitutes the go ahead for us to proceed with the Project from the date of that acceptance (the “Effective Date”).  These Terms apply to Projects we undertake for you.
    4. A scoping exercise may be purchased as a separate Deliverable prior to starting a Project once an Order is accepted and payment of the Price for a scoping exercise is made in advance. The “Scoping Service” provides a report indicating how you can effectively market your videos to the public. This may include an assessment of your market area, the target audience and location, your website and SEO.
    5. If there is a conflict between our Order and these Terms, then the Order shall prevail.
    6. Any Services we undertake to provide are supplied on the basis of these Terms. If you send us other terms, for example any which you attempt to include on your purchase or request order, or confirmation of request order or similar document, then these other terms are deemed to be an offer by you to buy our services under these Terms. The only amendments to these Terms which shall be effective are those agreed to by us in writing.

 

  • Variations

 

    1. You may at any time request Variations to the Project.  We will assess the request and indicate whether there will be an effect on the Price and any agreed timetable, and notify you of the basis on which we would accept the Variation.
    2. Variations must be agreed in writing.  Examples of Variations include, without limitation, changes to filming dates, times or locations, timescales for delivery of work, equipment required, the availability of personnel, the availability of permissions, consents and licences, access to and capacity of telecommunications networks, any change to the scope of the work as described in the Order and all other elements which impact on the Project and our ability to perform the Service, the Deliverables involved, or the Price.

 

 

  • Our charges

 

    1. We will invoice you for the Deposit, if any, on acceptance of the Order and reserve the right to issue a further invoice at any time for extras or third party charges including the Expenses described at clause 4. Invoices for the remainder of the Price or other sums outstanding will be issued as detailed in the Order, or on completion of Deliverables. In any event we will raise an invoice within 6 weeks of the Effective Date, and you agree to pay our invoices within 10 business days.
    2. All dates set out in the Order are provisional until they are confirmed by us, and the Deposit, if any, has been paid.
    3. We will add VAT at the prevailing rate when invoicing you.
    4. If we do not receive payment of any sums due, we reserve the right to stop working for you, and this will suspend our obligations under the Order until payment is received, and may delay the Project.  If we do not receive cleared funds 5 days in advance, production dates may be rescheduled.
    5. We shall be entitled to charge interest on overdue invoices from the date when payment becomes due until the date payment is received at a rate of 5 per cent per annum above the base rate of the Bank of England.
    6. Should your cheque be dishonoured and returned unpaid by the bank, then we shall be entitled to charge a fee of £25 per dishonoured cheque in addition to interest under clause 3(f).
    7. If the Project involves the transfer or licensing of any goods or IPRs in Deliverables to you, then such licence or title to those goods or rights will only pass to you once you have paid the Price in full for the Deliverables.  Failure to pay the Price means you are liable to return any goods or other Deliverables already provided to you and the IPRs shall remain vested in us.
    8. Where a price is included as part of the Price to cover Variations made by us for Expenses not covered in the Price (the “Contingency Fee”) that fee is non-refundable. It is calculated on a percentage of the total Price and will be detailed in the Order. The Contingency Fee does not cover any Variations requested by you.
    9. The list of charges in this Clause 3 are non-exhaustive and have been laid out for indicative purposes. We retain the right to charge for any other reason not listed in this Clause.

 

 

  • Expenses

 

  1. We may procure products or services from third parties for you in the course of a Project, including but not limited to media, stock images, domain names, software, actors, support staff, photography, design or development (the “Expenses”).
  2. We will aim to provide estimates of Expenses to you in advance and obtain your approval.  However, we may be unable to confirm those Expenses precisely with you before they are incurred, for example in the case of bandwidth or hosting charges and overtime.
  3. Notwithstanding the above, you agree to pay our estimate for any Expenses before they are incurred, and where our actual Expenses are higher than estimated you shall pay to us the balance.  These payments shall form part of the Price.
  4. We do our best to ensure the Order represents our Price for the Project, however there may be situations, apart from Variations of the Project, where the Price may be subject to change. This includes, but is not limited to, the following situations:
    1. where unforeseen Expenses arise;
    2. where a third party increases their fees.
  1. Where a Contingency Fee is provided in the Price and the actual Expenses are higher than estimated, the actual Expenses shall be set off against the Contingency Fee.

 

 

  • Sign off

 

  1. We will request sign off of Deliverables at various stages of a Project. You will be notified when a Deliverable becomes available. You will be deemed to have accepted a Deliverable 5 business days after the Deliverable is available, unless you communicate your acceptance earlier.
  2. If prior to accepting a Deliverable you establish to our reasonable satisfaction that it is not in accordance with the Order, we will use our reasonable endeavours to address your concerns.
  3. Unless otherwise terminated in accordance with clause 14, a Project shall begin on the Effective Date and shall be complete when you have accepted all Deliverables, we have supplied all Services detailed in the Order, and you have paid us the Price.

 

 

  • Consumer cancellation rights

 

    1. If you are contracting as a consumer, you have a statutory right to cancel your purchase for any reason and receive a full refund, however, that right is time limited, and expires as explained below.
    2. If you are contracting as a consumer, we will not begin work on the Project until 14 days after the Effective Date, unless you expressly ask us to do so in writing and acknowledge that in doing so you will lose your right to cancel your purchase.
    3. Your statutory right to cancel a purchase starts from the Effective Date (when the contract between us is formed) and ends either 14 days’ later, or upon completion of a Project, whichever is the earliest.
    4. If you decide to cancel a purchase in accordance with this clause 6, you will pay us part of the Price in proportion to the Services and Deliverables supplied to you before we were informed of your decision to cancel, and we will refund the remainder if it has been paid already.
    5. This condition 6 only applies if you are contracting as a consumer, which means that you are an individual acting for purposes which are wholly or mainly outside of your trade, business, craft or profession.

 

 

  • Your obligations

 

To enable us to perform our obligations under these Terms, it is important you co-operate with us, and provide the information and access to facilities that we reasonably require. You agree:

    1. To review documents and multimedia delivered in the course of the Project in a timely manner, and in accordance with the agreed Project schedule, if any, and to sign off, make decisions, and take all other actions required of you to enable us to complete the Project.
    2. To provide us with access to the following where reasonably required to complete the Project: any systems, data or information; your premises or the premises of others; individuals who might feature in the Deliverables or who are able to provide information or assist with technical issues; artwork, video, audio or other multimedia; equipment; audio and video feeds; and internet access of sufficient availability and capacity.
    3. To ensure that all premises visited by our staff and subcontractors are safe and accessible.  We may remove our personnel from a location if it is reasonably deemed unsafe in our sole discretion, in which case you will be liable to us for any costs incurred as a result.
    4. To brief us through a single project manager designated in the Order as a Nominated Contact.
    5. Not to ask us to perform Services in a way which might encourage violent or anti-social behaviour, damage to property or the causing of nuisance or injury to any individual, or otherwise conflict with the public interest.
    6. That you are the owner of, or have the necessary permissions or consents to use any copyright or other materials you supply for the purpose of the Project, and that you will obtain in advance the necessary consents and permissions for us to film or otherwise record individuals, locations, structures, or objects.
    7. To comply with all applicable laws and Advertising Regulations issued, made or given by any Advertising Regulator, and inform us immediately if you consider that any Deliverables may be false or misleading or in any way contrary to law or to any applicable Advertising Regulation.
    8. That we may access your website, social media and multimedia traffic statistics and, where it is necessary for us to perform the Services, to make changes to your websites, social media accounts, and multimedia content. Unless you have delegated responsibility for such changes to us, we will notify you of alterations we propose to make and obtain your approval before going ahead, and you agree to approve or reject and comment on such changes promptly.  
    9. To regularly backup your own data, content and multimedia and that which we supply to you.

 

 

  • Our obligations

 

    1. We will consult with you on matters relating to the Project.
    2. We shall try to complete the Project within estimated timescales indicated in the Order, but time is not of the essence unless we have specifically agreed to it in which case it will be dependent on your own delivery of material and information in a timely manner.
    3. We warrant that Services performed during the Project shall be performed using reasonable skill and care, and shall be of a quality conforming to generally accepted industry standards and practices.  However, we do not guarantee the availability or capacity of telecommunications or broadcasting facilities, nor that multimedia we supply will be accessible to or in a format suitable for all of the people you wish to access it.
    4. We warrant that any intellectual property (IPR) we create for the purpose of the Project is our own original work.  Where we procure and use IPR belonging to a third party for the Project, we will take reasonable precautions to ensure that the third party has consented to such use, or would not object to our use of it. In the event that consent to use a third party’s material is not forthcoming in any Deliverables, we agree to remove and replace the material in consultation with you.  If any additional charges are payable for such use, we will bring this to your attention as soon as we know.

 

 

  • Confidentiality

 

    1. This confidentiality clause shall survive termination or expiry of any Project.
    2. Any confidential information we exchange with each other (“Confidential Information”) shall be kept secret, safeguarded and not divulged by either party. We agree to take all reasonable security precautions in the safekeeping of the Confidential Information. The Confidential Information is provided exclusively for the purpose of the Project and should not be used in any other way. Any Confidentiality Agreement signed between us will continue in force as if it was part of these Terms.
    3. Notwithstanding the above, we shall be entitled to divulge the Confidential Information to a subcontractor for the purpose of the Project, provided that such contractor has entered into a confidentiality agreement with us.
    4. For the avoidance of doubt, the restrictions in this clause 10 shall not prevent:
      1. the disclosure or use of Confidential Information for the proper performance of our duties;
      2. the disclosure of Confidential Information if required by law; or
      3. the disclosure of Confidential Information which has come into the public domain otherwise than through unauthorised disclosure.

 

 

  • Intellectual property rights

 

    1. For the purpose of these Terms, Intellectual Property Rights or IPRs mean any rights including copyright, trade mark, patents, designs, know how or other confidential information.
    2. To enable us to supply the Services and the Deliverables, you grant us a non-exclusive licence to use all IPR you provide to us for the purpose of the Project.
    3. Upon your payment of the Price in respect to a Deliverable, we grant you a Content Licence.
    4. The Deliverables may contain IPRs not created by us for your Project or IPRs owned by us which was created for other projects. Any third party IPRs used in the Deliverables are licenced for use in your Project. The Content Licence includes a non-exclusive licence to use these IPRs in the Deliverable throughout the Territory for all purposes within the scope of the Project.
    1. All other IPR not owned by us, and supplied to you by us in the course of the Project shall remain the property of the relevant third party, and is provided under that third party’s licence terms. Where there are particular provisions in those terms they will be drawn to your attention in the Order.
    2. You may be subject to Renewal Fees to retain the Content Licence for use of the Deliverables after completion of the Project, details of which shall be provided in the Order. For example, we may make use of, or commission third party content such as stock images, or compositions, or if we deliver live action video, we may also be subject to periodic actor buyout fees.
    3. Where a Deliverable is subject to Renewal Fees as specified in the Order, the Content Licence shall last for 3 years from the date upon which we first supply you with that Deliverable.  You may extend such a Content Licence by further consecutive periods of 3 years upon payment of the Renewal Fee. Otherwise, a Content Licence shall be perpetual.
    4. We shall be entitled to publish up to 2 minutes of audio-visual content from the Deliverables on our website, or include it in a show reel or other presentation, for the purpose of promoting our business and services.
    5. Subject to any Renewal Fees, stock footage, third party rights and there being scope to grant more extensive rights you may obtain from us an exclusive licence or an assignment of some Deliverables for an uplift of the Price if this is  agreed between us in writing..

 

  • Indemnity

 

You shall indemnify us and keep us indemnified from and against any and all claims, loss, damage, costs, expenses and liability (whether criminal or civil) which we may incur and which arise, directly or indirectly, from or your use of the Services or the Deliverables, or from your breach of any of your obligations under these Terms, including any claims brought against us alleging that Services or Deliverables provided by us infringe a third party’s right.

 

 

  • Limitation of liability

 

    1. Nothing in these Terms shall exclude or in any way limit our liability for fraud, or for death or personal injury caused by our negligence, or any other liability to the extent such liability may not be excluded or limited as a matter of law.  Subject to this but including any liability arising under any indemnity under these Terms:
      1. we shall not be liable to you for any loss of actual or anticipated revenue, goodwill, opportunity or business, whether directly or indirectly arising from a Project. This shall apply even where such a loss was reasonably foreseeable;
      2. we shall not be liable to you for any loss of data, for interruptions to the availability of online content, and we do not warrant that the Service or Deliverables will be virus or malware-free;
      3. You agree to ensure that all Deliverables are approved by any regulatory body you are or will be subject to, including but not limited to, broadcasting standards, and advertising regulations, and accept that we are not be liable for compliance with such rules, regulations or guidelines in relation to the Deliverables.
      4. our maximum aggregate liability to you under or in connection with a Project whether in contract, tort (including negligence) or otherwise shall be limited to the lesser of:
        1. £5,000; or
        2. the limit of liability specified in the Order, if any; or
        3. the sum paid by you to us during the preceding 12 months in exchange for the Project.
    2. For the avoidance of doubt, while we will exercise reasonable care when recommending third party suppliers to you, we have no control over their performance, and shall not be liable to you whether in contract, tort (including negligence) or otherwise in respect of any loss arising from your engagement of those third parties.

 

  • Sub-contractors

 

We reserve the right to assign certain aspects of the Project to subcontractors to ensure appropriate skills, and on-time completion. We agree to accept full responsibility for the Project even if subcontractors have been involved.

 

 

  • Cancellation and Termination

 

    1. We run our business in reliance on the Projects we schedule, and if you cancel any Deliverables or an entire Project we will suffer a loss.  Any such cancellation constitutes a breach of these Terms.
    2. If you cancel you will remain liable to us for the Deposit, which we will retain. If we have already started a Project when you request cancellation, then we will assess the damages we would suffer if we accept your request, and notify you of these, taking into account the stage we have reached, the nature of the Project, the Price, and all other relevant circumstances.
    3. In the event that we have to cancel the Project for any reason, including a breakdown of the relationship, we will discuss the matter with you and agree on a suitable alternative for your requirements. If you are unwilling to accept our suggested alternative, we will, at our discretion, deduct any reasonable costs incurred on the Project and refund any remaining Deposit received from you.
    4. Either party may terminate a Project in accordance with the above, or forthwith by notice in writing to the other if the other party:
  1. commits a material breach of these Terms and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so; or
  2. commits a material breach of these Terms which cannot be remedied under any circumstances; or
  3. (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
  4. (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or
  5. becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
  6. has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
  7. the other party ceases, or threatens to cease, to carry on business;
    1. Termination shall not affect accrued rights or provisions that are intended to survive these Terms.

 

 

  • Force Majeure

 

Neither of us shall be liable for any delay or failure to perform any of our obligations if the delay or failure results from any circumstance beyond our reasonable control (an event of “Force Majeure”). The one affected by Force Majeure, shall be entitled to a reasonable extension of its obligations after notifying the other of the nature and extent of such events.

 

 

  • Assignment of rights of the contract

 

  1. Subject to the paragraph below, neither of us may assign or otherwise transfer our rights or obligations arising from this agreement, which shall inure to the benefit of and bind you and us and our respective legal representatives, successors and assigns.
  2. Notwithstanding the foregoing, we may assign our rights and obligations arising from this agreement to any acquirer of all or of substantially all of our equity, securities, assets or business or to any entity controlled by us, which controls us, or is under common control with us.  

 

 

  • Notices

 

    1. Any notice given under this agreement shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally, or sending it by pre-paid recorded delivery or registered post to the relevant party at its registered office for the time being or his last known address. Any such notice shall be deemed to have been received:
      1. if delivered personally, at the time of delivery;
      2. in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting.
    2. In proving such service it shall be sufficient to prove that the envelope containing the notice was addressed to the address of the relevant party and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery or registered post.

 

 

  • Entire Agreement

 

The Terms and the Order constitutes the entire agreement between you and us in relation to your use of the Services and Deliverables, and supersedes any and all earlier agreements relating to your use thereof.

 

 

  • Governing law and jurisdiction

 

The validity, construction and performance of the terms between us shall be governed by English law.  Any dispute arising under or in connection with this agreement shall be subject to the non-exclusive jurisdiction of the English courts to which both you and we hereby submit.

 

 

  • Waiver

 

A failure by either of us to enforce any one or more of these Terms shall not operate as a waiver of that term or of the right at any time subsequently to enforce any of these Terms.

 

 

  • Non-exclusivity

 

You acknowledge that we may provide similar Services or Deliverables to third parties during and after the completion of a Project for you, subject to these Terms.

 

 

  • Rights of third parties

 

Nothing in these Terms is intended to, nor shall it confer any rights on a third party, and the Contracts (Rights of Third Parties) Act 1999 shall not apply.

 

 

  • Definitions

 

‘Advertising Regulation’ is any present or future applicable code of practice, adjudication, decision, guideline, direction or rule of any Advertising Regulator and includes any applicable modification, extension or replacement thereof in force from time to time.

 

‘Advertising Regulator’ includes the Office of Communications (“Ofcom”) the Broadcast Committee of Advertising Practice (“BCAP”), the Committee of Advertising Practice (“CAP”), the Advertising Standards Authority (“ASA”), the ASA (Broadcast) and any other UK or EU regulator or statutory or regulatory body relevant to the Deliverables or Services.

 

‘Client’ is the person named in our Order for whom a Project is to be undertaken, and is also referred to as ‘you’, ‘your’ in these Terms.

 

‘Confidentiality Agreement’ means an agreement between you and us covering disclosures which are to be kept secret.

 

‘Confidential Information’ any secret information that either party divulges to the other, and which is clearly indicated to be confidential, or by its very nature is clearly of a commercially sensitive nature.  Such information may be in any form including spoken words, price lists, plans, software, documents, recommendations, reports, emails, letters, telephone communication and training documentation or other media incorporating information.

 

‘Content Licence’ a non-exclusive licence to use the Deliverable throughout the Territory for all purposes within the scope of the Project.

 

‘Contingency Fee’ As described in Clause 3(h)

 

‘Deliverables’ the individual pieces of work we shall deliver, as detailed in the Order.

 

‘Deposit’ the deposit, if any, to be paid by you as indicated in the Order.

 

‘Effective Date’ the date on which you accept the Order by signing it, by paying the Deposit, or by any other clear and unequivocal communication or conduct.

 

‘Expenses’ fees for products or services from third parties procured for you in the course of a Project.

 

‘Intellectual Property Rights’ or ‘IPRs’ any rights including copyright, trade mark, patents, designs, know how or other confidential information whether pre-existing or created in the course of the Project.

 

‘Nominated Contact’ the single project manager with final authority to make all decisions on your behalf, and who will secure signature by you or on your behalf where required.

 

‘Order’ the statement of work or other similar document describing the particular Deliverables to be supplied as part of the Project we are to perform, including any Variation.

 

‘Price’ the sums to be paid by you for the Project as detailed in the Order, including any third party costs or extras requested or Variations agreed thereafter.

 

‘Project’ the Services to be performed by us for you as detailed in the Order.

 

‘Proposal’ quotation, estimate or other similar document including the statement of work and describing the particular Deliverables to be supplied as part of the Project we are to perform, including any Variation. It is not capable of acceptance so as to make a binding contract.

 

‘Renewal Fees’ fees, detailed in the Order, required to renew the Content Licence.

 

‘Scoping Service’ is to provide a report indicating how you can effectively market your videos to the public.

 

‘Services’ describes the range of work that we perform for clients, including but not limited to video and audio composition, recording, editing and production, and graphic design.

 

‘Terms’ these terms and conditions, as updated from time to time and notified to the Client when an Order is produced, and where the context requires includes any Variation.

 

‘Territory’ the territory in which you shall be entitled to use the Deliverables, as described in the Order.

 

‘us’, ‘we’, ‘our’ Element 26 Limited, a company incorporated in the UK with registration number 8563991 and registered office 8 City Road, London, EC1Y 2AA.

 

‘Variation’ any change to the scope of the Project agreed by us in writing.