Terms of Service
1. Creative Control
1.1 The parties agree to meet from time to time as agreed between the parties to consult in good faith with each other over the scripts, storyboarding, editorial content and artistic direction of the Deliverables. However, the Client will have final editorial and artistic control and responsibility over the Deliverables. Accordingly, it is the Client’s responsibility to ensure that the final Deliverables do not contain any defamatory matter or breach any contract or duty of confidence, or incorporate any matter which constitutes contempt of court or breaches any provision of law.
1.2 The Client will be responsible for any additional Fees or extension in the Production Schedule arising from any directions given by the Client Representative. The Client Representative will also be available to provide hands-on assistance during filming, where agreed by the parties.
1.3 Any changes requested by the Client in relation to the Production Schedule and/or the Deliverables shall be dealt with in accordance with the following process:
- at any time, the Client may request changes to any part or parts of the Services, including additional Services, deletions or other amendments (“Change Request”);
- Vivid Colour Films shall notify the Client within ten working days whether or not it accepts the Change Request (and the Client shall provide all such information as Vivid Colour Films may require in order to respond to the Change Request). If Vivid Colour Films accepts the Change Request, Vivid Colour Films shall submit to the Client written details of any additional Fees payable by the Client for the change, together with details of any effect on the Production Schedule;
- the Client shall inform Vivid Colour Films as soon as reasonably practicable whether it accepts or rejects Vivid Colour Films submission, and the Production Schedule (including the relevant Fees and timescales) shall be deemed changed or unchanged accordingly. If the Client does not respond, the submission shall be deemed rejected;
2. Obligations
2.1 The Client agrees that it will give Vivid Colour Films access to the Client’s personnel as reasonably necessary for Vivid Colour Films to provide the Services, and will (as reasonably necessary) instruct the Client’s personnel to:
- assist and support Vivid Colour Films
- comply with FT’s reasonable requests in making the Deliverables
- and provide such information as Vivid Colour Films may reasonably request.
3. Payment
3.1 The Client will pay the Fees as set out in the quotation or as otherwise payable under this Agreement.
3.2 If the Client is required by any law or regulation to make any deduction or withholding (on account of tax or otherwise) from any payment, the Client will, together with such payment, pay any additional amount as will ensure that Vivid Colour Films receives, free and clear of any tax or other deduction or withholding, the full amount which it would have received if no such deduction or withholding had been required. The Client will promptly forward to Vivid Colour Films copies of official receipts or other evidence showing that the full amount of any such deduction or withholding has been paid over to the relevant taxation or other authority.
3.3 The parties agree to comply with the applicable double tax treaty with respect of withholding taxes and Vivid Colour Films will comply with all reasonable requests from the Client to file, or to provide the Client with such forms, statements or certificates as will enable the Client to apply a reduced rate of tax or exemption from tax in accordance with the applicable double tax treaty.
3.4 If the Client fails to make any payments when due under this Agreement Vivid Colour Films will have the right (in addition to any other available rights and remedies) to suspend the Services until payment is received.
4. Rights
4.1 Subject to and with effect from payment by the Client in full of the Fees, and subject to clause 4.2, Vivid Colour Films grants and assigns to the Client absolutely 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.
4.2 The assignment in clause 4.1 will not apply to any Background Material or Third Party Material. Background Material will remain the property of Vivid Colour FIlms or the Primary Subcontractor (as applicable) and Third Party Material will remain the property of the applicable third party licensor. Vivid Colour FIlms licenses the Background Material and sublicenses the Third Party Material to the Client to use within the Deliverables. Client will not make any use of Background Material or Third Party Material other than within the Deliverables without the prior written consent of Vivid Colour Films.
4.3The Client agrees that Vivid Colour Films may use the Client’s name and intellectual property rights to the extent necessary for the purpose of providing the Services, such as by including them on Deliverables, referring to them in paperwork and in discussions with third parties in order to indicate the nature of the Deliverables, and including them in Vivid Colour Films own promotional materials and show reels in accordance with clause 4.4. The Client warrants that no such use will infringe the rights of any third party.
4.4 Vivid Colour Films and the Primary Subcontractor will have the non-exclusive right for a period of five years from the Delivery Date to use extracts from the Deliverables for its own promotional use in internal and client and prospective client presentations, show reels and on Vivid Colour Films and/or the Primary Subcontractor’s websites. 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 Client will have the right to request to Vivid Colour Films that the extracts (or any one or more of them) be removed and no longer used by Vivid Colour Films if the Client reasonably considers that such use is detrimental to the Client’s reputation or its commercial interests.
5. Warranties
5.1 Vivid Colour Films warrants to the Client that:
- it will perform the Services with reasonable care and skill; and
- it is fully entitled to enter into and to perform this Agreement; and
- except to the extent that it incorporates any Background Material, Third Party Material or Client Material, the Deliverables will be original and will not infringe the copyright or any other rights of any third party.
5.2 The Client warrants to Vivid Colour Films that:
- it is fully entitled to enter into and perform this Agreement;
- it will not do or permit to be done anything which may reasonably be interpreted by Vivid Colour Films in any way as being prejudicial, detrimental or denigrating to Vivid Colour Films brand or business;
- it will either own, or have obtained and paid for licenses to use, all Client Materials, and the Client Materials will not infringe the copyright or any other rights of any third party; and
- the Client Materials will not contain any defamatory matter or breach any contract or duty of confidence, or incorporate any matter which constitutes contempt of court or breach any provision of law.
6. Confidentiality
6.1 Each of the parties undertakes to the other to keep confidential the terms of the Term Sheet and all information (written or oral) concerning the business and affairs of the other that it will have obtained or received as a result of the discussion leading up to the entering into or the performance of this Agreement save that which is: (a) trivial or obvious; (b) already in its possession other than as a result of a breach of this clause; (c) in the public domain other than as a result of a breach of this clause; or (d) required by a government body, a court of competent jurisdiction, or otherwise by law to be disclosed.
6.2 Each of the parties undertakes to the other to take all such steps as will from time to time be necessary to ensure compliance with the provisions of clause by its employees, agents and sub-contractors.
6.3 The provisions of this clause will survive any termination of this Agreement.
7. Limitations of Liability and Indemnities
7.1 Nothing in this Agreement will operate to exclude or restrict either party’s liability (a) for death or personal injury caused by that party’s negligence, (b) fraud or fraudulent misrepresentation, (c) any liability which cannot be limited or excluded by law, or (d) under any indemnity given by that party under this Agreement.
7.2 Neither party will be liable to the other for any indirect, special, incidental or consequential loss, damage, costs, expenses or other claims whatsoever.
7.3 Without prejudice to the Client’s payment obligations under this Agreement, the total liability of either party whether in contract, tort or otherwise in respect of any breach of its obligations under this Agreement or any representation, statement, negligent act or omission arising under or in connection with this Agreement will be limited to direct damages which in no event will exceed 200% of the Fees.