FILM BY NUMBERS
Terms and Conditions
1. Introduction
1.1 Unless otherwise stated in writing, all orders are accepted subject to these terms and conditions as stated herein and the Customer by authorising or allowing work to proceed is deemed to have acknowledged this fact.
1.2 These terms and conditions should be read together with the Order Confirmation. If there is any conflict between the Order Confirmation and these terms and conditions, the provisions of the Order Confirmation shall prevail.
1.3 No variation to these terms and conditions shall be binding unless agreed in writing to between the authorised representatives of the Consultant and the Customer.
1.4 The Consultant’s employees, agents or sub-contractors are not authorised to make any representations concerning any aspect of this Agreement unless such authority has been confirmed by the Consultant in advance in writing. In entering into the Agreement the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
2. Definitions and Interpretation
2.1 In this Agreement:-
“Agreement†means these terms and conditions together with the Order Confirmation.
“the Customer†and “You / Your†means the company, firm, person, persons, corporation or public authority using any of the Consultant’s services as identified in the Conformation Order and includes their successors or personal representatives.
“Completion Date†means the date (if any) specified in the Order Confirmation as the estimated date on which the Project shall be Complete.
“Customer Materials†means such materials as are provided to the Consultant by the Customer, including any third party materials which the Customer requests that the Consultant incorporates into the Works.
“the Order Confirmation†means the email or letter sent to the Customer by the Consultant which sets out the Work to be carried out, price, Completion Date and such other specific contractual terms as may be appropriate.
“the Contract Price†means the price for the Work set out in the Order Confirmation.
“the Consultantâ€Â or “we/our/us†means Brian Matheson trading as Film By Numbers, 39/1 Bryson Road, Edinburgh EH11 1DY,
“Instruction†means the order from the Customer for the Work.
“Material Change†means a major change to the Project brief or Instruction including but not limited to length, amount of filming or general approach to the Project.
“Production†means actual filming, recording or other activities involved in the Project
“the Project†means the entirety of the activities required by the Instruction to be carried out
by the Consultant.
“the Work†means the event, film, video, sound recording or other deliverable to be supplied to the Customer as set out in the Order Confirmation.
 “Writing†includes any written paper document, any fax and any email correspondence.
2.2Â In this Agreement, unless the context requires otherwise:-
words denoting any gender include all genders and words denoting the singular include the plural and vice versa; references to clauses are unless the contrary intention appears references to clauses of this Agreement; and the headings and sub-headings of this Agreement are inserted for convenience only and shall not affect the construction thereof.
- Customer Obligations
3.1 The Customer is responsible for providing all necessary information and facilities reasonably required for the Project including:-
3.1.1 Access to filming location(s) in advance of Production;
3.1.2 Communication of correct information to support Production, including but not limited to correct point of contact details, times of filming, lighting at the venue and access requirements.
3.1.3. Provision of logo’s ‘vector graphic’ quality, high quality print standard.
3.2 The Customer agrees and undertakes to ensure that all necessary information is communicated to all third parties involved in the Project. The Consultant is not responsible for briefing such third parties unless this has been agreed and stated in the Order Confirmation.
3.3 The Customer will be responsible for obtaining and holding all consents, licences, permits and other similar instruments applicable to Customer Materials including without limitation copyrights, trade marks, logos, and all such similar instruments.
3.4 The Customer is responsible for ensuring that performer release forms are signed by any person who is to appear in an element of Work. The consultant shall have no liability for re-editing or further work due to an individual refusing to allow the use of their image or audio.
4. Timescales
4.1 The Consultant will use reasonable endeavours to complete the Work by the Completion Date set out in the Order Confirmation or such other date as may be mutually agreed however any date for performance by the Consultant in relation to the Work whether stated in the Agreement or otherwise is only approximate and shall not be an essential term of the Agreement.
4.2 The Consultant will have no liability for delays or omissions caused by a failure on the part of the Customer to perform its obligations in terms of this Agreement, nor for circumstances outwith the Consultant’s control.
5. Price and Payment
5.1 The Customer shall pay the Contract Price for the Work by way of an advance payment and subsequent payments as set out in the Order Confirmation. The advance payment invoice will be sent to the Customer with the Order Confirmation. Work will commence upon receipt by the Consultant of the Customer’s payment in respect of said advance payment invoice.
5.2 Payment of the advance payment invoice will be due within 7 days of the invoice date. Payment of subsequent invoices will be due within 30 days of the invoice date. The Customer agrees that timely payment of the Consultant’s invoices shall be an essential term of the Agreement. Payment is currently accepted by BACS or cheque. If the Customer’s cheque is returned by the bank as unpaid for any reason, the Consultant reserves the right to levy a “returned cheque†charge of £25. Accounts that have not been settled within 7 days of a final reminder will incur a late payment charge of 10% of the amount outstanding.
Where the Consultant is providing hosting services, the Website will be removed from the server if timely payment is not made.
5.3 The Consultant shall be entitled to payment in respect of any expenditure it incurs in relation to the Project where such expenditure is related to or ancillary to the Project (“Expensesâ€).
6. Warranties
6.1 The Customer warrants and represents to the Consultant that every element of text, graphics, photos, designs, trademarks or other material supplied to the Consultant for inclusion in the Work is owned by the Customer, or that the Customer has permission from the rightful owner to use each of these elements and that the Consultant’s use of such material shall not infringe the intellectual property rights of any third party.
6.2 The Customer warrants to the Consultant that:-
6.2.1 it has the right to publish the contents of the Work;
6.2.2Â the Work content will not contravene any law, regulation, code of conduct nor infringe any rights including broadcast, copy or those of a third party;
6.2.3 the Work content will comply with current censorship, advertising and broadcasting codes of conduct.
6.3 The Consultant warrants and represents to the Customer that all elements of the Work created by the Consultant pursuant to the Instruction will, unless otherwise stated in this Agreement, be original work and not subject to any intellectual property or other rights of any third party and that the Customer’s use of the Work shall not infringe the intellectual property rights of any third party.
7. Storage Policy
7.1 All media produced by us on your behalf will be stored as follows:
7.1.1 All footage will be captured in Hi-Definition (as standard) and recorded on professional format digital media before being transferred to a high speed RAID array for the duration of post production;
7.1.2 Following sign-off by the Customer on the final edit, the exported video in its native format will be archived on optical media for long term storage;
71.3 Source materials and project files are not retained unless otherwise agreed in the Order Confirmation or otherwise writing.
8. Intellectual Property Rights
8.1 All Customer-owned content and materials including all pre-existing Trademarks shall remain the sole property of the Customer or its respective suppliers and the Customer or its suppliers shall be the sole owner of all rights in connection therewith. The Customer hereby grants to the Company a nonexclusive, non-transferable licence to use, reproduce, modify, display and publish the Customer-owned content and materials solely in connection with the Work.
8.2 All third party-owned materials are the exclusive property of their respective owners. The Company shall inform the Customer of all third party materials which may be required in connection with the Work and the Customer shall at its expense obtain any licences in respect of copyright or other intellectual property rights and any other releases or permissions which are required for all such third party-owned materials which are to be included in the Work.
8.3 Copyright and other intellectual property rights in the Work shall remain vested in the Consultant unless otherwise agreed on writing. Upon written confirmation by the Consultant that final payment in terms of the
Agreement has been received the Consultant hereby grants to the Customer a nonexclusive, nontransferable (other than the right to sublicence such uses to the Customer’s Web hosting or Internet Service Provider), perpetual, worldwide licence to use the Work in accordance with this Agreement, however no rights of ownership are conveyed unless this has been specifically agreed in writing.
8.4 No part of the Work may be reproduced without the written permission of the Consultant. Should the Customer wish to acquire ownership of the intellectual property rights in the Work an additional fee must be agreed in writing between the parties prior to completion. In the event of such agreement and upon written confirmation by the Consultant that final payment in terms of the Agreement including any additional fee has been received, the Consultant shall assign to the Customer all ownership rights, including any copyrights, in and to any artworks or designs comprising the Work. The Consultant shall cooperate with the Customer and
shall execute any additional documents reasonably requested by the Customer to evidence such assignment.
8.5 No rights as described in sub-clause 8.4 above will pass to the Customer until all amounts due to the Consultant have been paid. The Consultant will have a lien over any Work. Should final payment not be made in full within two months from the date of the relative invoice(s) the Customer agrees and accepts that it will forfeit its rights in terms of this Agreement.
8.5 In the event that the Customer acquires ownership of the intellectual property rights in the Work pursuant to sub-clause 8.4, the Customer grants the Consultant a royalty-free, worldwide non-exclusive licence to use and reproduce and display the Work and elements thereof, including the final production, footage, material, media content, trademarks and brand features contained in the Work and to sub-licence same for promotional purposes.
9. Confidentiality
9.1 The Consultant and the Customer shall keep confidential all information of the other party, whether designated as confidential or not, obtained under or in connection with the Agreement and shall not divulge the same to any third party without the written consent of the other party. The provisions of this clause shall not apply to any information in the public domain otherwise than by breach of the Agreement; or information obtained from a third party who is free to divulge the same.
9.2 The Consultant may refer to the Agreement or to the fact that the Customer is the Consultant’s customer unless otherwise agreed in writing.
- Privacy
10.1 The parties acknowledge that the images of individuals appearing in videos produced as part of the Service will constitute personal data in terms of the Data Protection Act 1998 (“the Actâ€). In processing such personal data the Consultant is a data processor in terms of the Act and such processing is at the behest of and under the direction of the Customer. The Customer hereby acknowledges its obligations as a data controller in terms of the Act and warrants and represents to the Consultant that it has discharged and shall discharge its obligations in terms thereof and the Customer shall hold the Consultant harmless from any claims by any third party relating thereto.
10.2 Any personal data (as defined in the Act) provided by you to us shall at all times remain your property and we shall take all reasonable precautions to preserve the integrity of such personal data and to prevent any corruption or loss, damage or destruction of such personal data, PROVIDED THAT we reserve the right to disclose to the police, the fire authorities, any other relevant authority, our insurance company and any of their representatives details of the records kept by us.
11. Changes
11.1 The Consultant accepts that minor changes requested by the Customer to aspects of the Instruction, the Project or the Work are expected as part of the creative process. However in the event that the Customer
requires a Material Change (in respect of which the Consultant shall be sole arbiter) to any aspect of the Instruction, the Project or the Work, the following process shall be followed:-
11.1.1 The Customer shall provide the Consultant with written notice of the Material Change. The Customer shall also inform the Consultant whether the Project activities are to continue whilst the Material Change process is underway.
11.1.2 The Consultant shall within 14 days notify the Customer of the effect of the Material Change on the Completion Date, Contract Price and any other aspect of the Agreement. The Customer shall within 14 days of receipt of the Consultant’s said notification confirm in writing whether the Material Change is to be carried out.
11.1.3 In the event that the Material Change is to be carried out, the Agreement shall be amended accordingly.
11.1.4 If the Consultant has not received the Customer’s written confirmation either to proceed with the Material Change or not within 14 days of the customer’s receipt of the Consultant’s notification in accordance
with sub-clause 11.1.2, the Consultant will be entitled to proceed with the Project on the basis of the existing Instruction or to terminate the Agreement by notice in writing to the Customer.
11.2 In addition to the above Material Change provisions, changes which result in additional work being carried out may be chargeable at the relevant daily rate; this shall include the following:
11.2.1 Changes that result from inaccurate on misleading information having been supplied by you in the Instruction;
11.2.2 Changes that result from your failure to obtain consent from any third parties or employees necessary in the delivery of the Service;
11.2.3 Additions to the original Instruction in the form of extra variations or edits of the originally planned piece such as shorter ‘highlights’ edits or specific web versions that are not agreed at the outset.
12. Delays
In the event that dates have been agreed for filming to take place and the Customer cancels or changes the dates, the following charges shall be due and payable by the customer:-
12.1 Within 7 days of filming date – £100 plus VAT.
12.2 Within 48 hours of filming date – 50% of daily filming rate plus VAT.
12.3 Within 24 hours of filming date – 100% of daily filming rate plus VAT
13. Termination
13.1 A party (‘the Initiating Party’) may terminate this agreement with immediate effect by written notice to the other party (‘the Breaching Party’) on or at any time after the occurrence of one or more of the following events:-
13.1.1 the Breaching Party committing a material breach of this agreement and failing to remedy the breach within 30 days starting on the day after receipt of notice from the Initiating Party giving details of the breach and requiring the Breaching Party to remedy it;
13.1.2 the Breaching Party passing a resolution for winding up, a court of competent jurisdiction making an order for the Breaching Party’s winding up or the presentation of a petition for the Breaching Party’s winding up that is not dismissed within seven days, in each case other than for the purposes of solvent amalgamation or reconstruction in such manner that the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the Breaching Party’s obligations under this agreement;
13.1.3 the making of an administration order in relation to the Breaching Party or the appointment of a receiver over, or an encumbrancer taking possession of or selling any asset of, the Breaching Party;
or
13.1.4Â the Breaching Party making an arrangement or composition with his creditors generally or making an application to a court of competent jurisdiction for protection from his creditors generally.
13.2 the Consultant shall have the right to terminate this Agreement with immediate effect by notice in writing to the Customer if the Customer fails to make any payment when it becomes due.
13.3 Should the Customer wish to terminate in whole or in part the Instruction prior to completion the Customer shall be liable for all work carried out up to the point of termination and shall be invoiced accordingly.
13.4 The Consultant shall be entitled to retain any advance payment and other payments which may have been made on a quantum meruit basis for work carried out in relation to the Work up to the time of termination for whatever reason.
14. No Waiver
Failure or delay by either party in enforcing or partially enforcing any provision of the Agreement will not be construed as a waiver of any of its rights under the Agreement. Any waiver by a party of any breach of, or any default under, any provision of the Agreement by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Agreement.
15. Force Majeure
The Consultant shall be not be liable for any delay or failure to perform any of its obligations under this Agreement if delay or failure results from events or matters beyond its reasonable control, including but not limited to, acts of God, fire, lightening, explosion, war, disorder, accidents, flood, industrial dispute (whether or not involving its employees), failures or interruptions of electricity supplies, weather of exceptional severity, acts or omissions of local or central government or other authorities, the acts or omissions of any Internet Service Provider, or the delay or failure in manufacture, production or supply by third parties of equipment or services, and it shall be entitled to a reasonable extension of its obligations after notifying the Customer of the nature and extent of such events.
16. Indemnity
16.1 The Customer hereby indemnifies and holds harmless the Consultant against all claims, demands, losses, damages, costs or expenses howsoever arising incurred by the Consultant in connection with the Agreement as a result of a breach by the Customer of any provision of this Agreement, law or regulation and/or as a result of any third party legal action or threatened action in relation to Intellectual Property Rights infringement whatsoever and howsoever arising. Without prejudice to the foregoing generality:-
16.1.1 The Customer indemnifies and holds harmless the Consultant from any and all claims, demands, losses, damages, costs or expenses arising out of the Customer’s failure to obtain copyright or other intellectual property rights or other releases or permissions with respect to content or materials included in the Work; and
16.1.2 the Customer indemnifies and holds harmless the Consultant against any misrepresentation, whether intentional or unintentional, supplied to the Consultant orally or in writing in connection with this Agreement.
17. Limitation of Liability
17.1 Notwithstanding any other provision in this agreement, the Consultant’s liability to the Customer for death or injury resulting from its own negligence or that of his employees, agents or sub-contractors shall not be limited.
17.2 The Consultant’s entire liability to the Customer in respect of any breach of its contractual obligations, any breach of warranty, any representation, statement or delictual act or omission including negligence arising under or in connection with this Agreement shall be limited to an amount equal to the Contract Price.
17.3 The Consultant shall not be liable to the Customer for any indirect or consequential loss the Customer may suffer, even if the loss is reasonably foreseeable or the Consultant has been advised of the possibility of the Customer incurring it.
17.4 Without prejudice to the foregoing generalities, the Consultant will not be held responsible for any losses arising from the supply by the Customer or others of incorrect or incomplete information, or the Customer’s or others’ failure to supply any appropriate information or the Customer’s failure to act on the advice of the Consultant or respond promptly to communications from the Consultant or other relevant authorities.
17.5 The Consultant excludes all warranties as to the quality, accuracy or performance for the particular purpose of any web site which may be utilised to host the video. The Consultant will not be liable for any damages arising as a result of the use of any web site. The Consultant makes no warranty that the web sites are free from infection by viruses. Certain links on the web sites may lead to resources located on servers maintained by third parties over which the Consultant has no control and the Consultant accepts no liability in respect thereof.
17.6 The Consultant shall not be liable for any loss in connection with the video on any website including technical malfunction, computer error, defect in software, loss of data or other damage or disruption to videos except to the extent to which it is unlawful to exclude such liability under the laws applicable to this contract.
18. Assignation
Neither party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
19. Customer Satisfaction
Satisfaction with the quality of the Services provided is of paramount importance to us. If at any time you would like to discuss with us how our service to you could be improved, or if you are dissatisfied with the service you are receiving, please let us know, by telephoning 0131 622 0470 or emailing us at info@filmbynumbers.co.uk. We undertake to look into any complaint carefully and promptly and to do all we can to explain the position to you. If you feel that we have given you a less than satisfactory service, we undertake to do everything reasonable to address your concerns. Should matters not be resolved to your satisfaction and any dispute arise in connection with the Agreement parties shall attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure.
20. Remedies
The rights and remedies provided for by this agreement are cumulative with and not exclusive of any rights or remedies provided by law.
21. Notices
21.1 Any notice, demand or other communication given or made under or in connection with the matters contemplated by this agreement shall be deemed to have been duly given and received:-
a. if personally delivered, upon delivery at the address of the relevant party;
b. if sent by first class post, two business days after the date of posting;
c. if by email, when sent;
provided that if, in accordance with the above provision, any notice, demand or other communication would otherwise be deemed to be given or made after 1700 hours, it shall be deemed to be given or made at the start of the next business day.
21.2 A party may notify the other party to this Agreement of a change to its name, relevant addressee, address or fax number for the purposes of the above clause provided that such notification shall only be effective on:
21.2.1 the date specified in the notification as the date on which the change is to take place,
or
21.2.2 if no date is specified or the date specified is less than five business days after the date on which notice is given, the date falling five business days after the notice is given.
22. Entire Agreement
This Agreement set out the entire understanding of the parties with respect to their subject matter and replace any prior agreements or understandings or representations (unless fraudulent), whether written or oral.
23. Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of Scotland the courts of which shall have non-exclusive jurisdiction.