Terms and Conditions
These terms and conditions contain legal obligations.
1.1. In these terms and conditions, the following expression shall have the following meanings:
Briefing Document: accessed and completed by the Client on http://www.cincera.co.uk/brief/, containing details of approximately the minutes in length, the aims, creative and editorial vision of the Client.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confirmation of Order: the date of the first payment by the Client.
Client: the individual, company, party or other legal entity who wishes to engage the Producer, and to whom the Producer has agreed, to develop, produce and deliver to a corporate promotional video (Video) according to the details which are set out in the Briefing Document.
Delivery Date: the date by which the Video will be delivered to the Client.
Fixed Fee: the fee described in clause 5 of these terms and conditions, as agreed upon by the parties in the Confirmation of Order.
Producer: Cincera Productions Limited incorporated and registered in England Wales with company number 09254641 whose registered office is at 2 nd Floor, Hygeia House, 66 College Road, Harrow, Middlesex, HA1 1BE.
Products: the products of the Services, including the Video and all performances and literary, dramatic, artistic and musical material incorporated by the Producer into the Video but excluding rights in works owned by the Client.
Production Schedule: the agreed dates, times and locations for the preparation, production and post-production of the Video during the Term, as agreed by the parties.
Term: the period from the date of these terms and conditions until the Delivery Date or (if earlier) termination described in clause 10.
1.2. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, phrase or term preceding those terms.
2.1. In consideration of payment to the Producer of the Fixed Fee, the Client engages the Producer, and the Producer agrees, to produce the Video in accordance with the Briefing Document and the Production Schedule and to provide such other services as are agreed between the parties from time to time in connection with the Video (Services). The Services shall include:
(a) Selecting, gathering, holding and developing in consultation with the Client material that is to be contributed to the Video by third parties;
(b) Making all necessary preparations for the filming and production of the Video including providing or engaging the crew, studio and other necessary facilities and services necessary to render the Services;
(c) Background music and soundtrack;
(d) Creating and producing the Video in a timely fashion in accordance with Client’s instructions; and
(e) Undertaking and over-seeing all post production titling, editing, scoring, dubbing, cutting and completion of the Video; and
2.2 The Producer can also provide the following Services at the request of the Client for an additional fee;
(a) Creating and developing a storyboard for the Video, including any in full discussion with the Client and in accordance with the directions and request of the Client;
(b) Consulting with and assisting in writing of any script for narration in the Video, including subtitling;
(c) Casting voice artists in consultation with the Client;
(d) Use of the Producer’s filming studio; and
(e) The upload of the Video to various video sharing websites.
2.3. Subject to clause 2.2(e), any video sharing will be made at the risk of the Client, and the Producer will not guarantee that all of the websites used will accept the Video or the manner in which the Video will be displayed.
2.4. In accordance with clause 2.3, should the Video be uploaded to any video sharing websites, or websites with video sharing capability, the Client understands there is no guarantee any future changes the Client may wish to make to the Video may be implemented, in accordance with the websites’ policies. The Client understands that any video sharing websites, or websites with video sharing capability, may have their own terms and conditions of which the Producer has no control.
2.5. The Fixed Fee shall be protected for the duration of production. The Client will be liable for any further costs incurred should they request any extra services not included within the original Confirmation of Order, or any other services the Client requires after the completion of the Video.
2.6. The Client will be required to sign the Confirmation of Order, and return it by email or post to the Producer. The signatory to the Confirmation of Order confirms that they have the required authority to act on behalf the Client under these terms and conditions.
2.7. The Client is entitled to two revisions of the Video from the Delivery Date. The Client should inform the Producer of the revisions within five Business Days of receiving the Video. Should the Client require further revisions to that entitled then the Producer shall have the discretion to charge a fee (Revision Fee).
3. CREATIVE CONTROL
3.1. The parties agree to meet from time to time, as agreed between the parties, to consult in good faith with each other over the editorial content and artistic direction of the Video. The Client shall in its absolute discretion, but with full discussion with the Producer and giving good faith consideration to the Producer’s views as a professional production company, have final editorial and artistic control over the Video.
3.2. The Client may appoint a representative (Client Representative) who shall have the right on behalf of the Client to accept as satisfactory the story outlines, scripts voices, storyboards, design and music of the Video and the Client shall be responsible for the cost of any lengthening of the Production Schedule necessitated by the exercise of such right, other than the cost of charges arising from acts or omissions of the Producer. The Client Representative will also be available to provide hands-on assistance during filming.
3.3. The Producer will submit to the Client details of the scripts, voices, storyboards, design and music for the Video for review and acceptance by not later than the date agreed between the parties and the Client shall confirm either its acceptance or non-acceptance with reasons in writing within five Business Days after receipt of such details. If the Producer does not receive notice of such acceptance or non-acceptance within that period of five Business Days, the Client will be deemed to have accepted such details.
4.1. The Producer agrees that it shall:
(a) Render the Services to the highest professional standards and in accordance with the Client’s reasonable instructions and requests;
(b) Perform the Services in willing co-operation with the Client via the Client Representative and where requested by the Client its other professional advisors and service providers such as the Client’s PR or advertising agency;
(c) Not without the Client’s written consent, order goods nor incur any liability on the Client’s behalf nor pledge its credit nor hold itself out as being entitled to do so other than as is contemplated and agreed by the parties in advance;
(d) Subject to clause 6.5 not without prior discussion with the Client make any commercial use of its role in, or association with, the Video; and
(e) Be responsible for arranging and supervising the performance of the Services.
4.2. The Client agrees that it shall:
(a) Provide the Producer with reasonable access to its premises at no expense to the Producer inclusive of the cost of space, heat, light and power;
(b) Inform all employees, agents and guests at its premises of the proposed filming and obtain relevant release forms duly signed by all such persons;
(c) Provide the Producer facilities of travel and accommodation at the Client’s expense should the Producer be required to travel outside the London Orbital Motorway, also known as the M25 motorway.
(d) Assume liability for any information, text, graphic, photographic, video or other material supplied by the Client to the Producer for use in the Video, in terms of both the accuracy of the material provided, and the rights to include the material in the Video;
(e) Assume complete liability for the character and contents of the Video produced for the Client including all text, pictures, illustrations, animations, soundtrack, background music, and any other relevant material;
(f) Upon completion of the Video, the Video may be used in Producer’s customer list and on the Producer’s website.
(g) Where necessary and agreed give the Producer access to the Client’s personnel and instruct such personnel to assist and support the Producer wherever possible, to comply with the Producer’s reasonable requests in making the Video, and in particular to provide such information as the Producer may request; and
(h) Provide access to digital information, company graphics and website for use in the Video.
5. FEES AND PAYMENT
5.1. Subject to the provisions of these terms and conditions and to the due performance by the Producer of its material obligations under these terms and conditions, the Client shall as inclusive remuneration and as full and complete consideration for the Services and all rights granted to the Client in these terms and conditions, pay to the Producer the Fixed Fee payable as follows:
(a) 50% on Confirmation of Order of the Video (Deposit); and
(b) 50% on Delivery Date.
5.2. The Client acknowledges the Deposit will be non-refundable.
5.3. Should the Client require further revisions pursuant to Clause 2.7, then the Revision Fee shall be payable prior to the Producer making the revisions.
5.4. The Fixed Fee shall be exclusive of VAT, which shall be paid to the Producer, in addition, on submission by the Producer of a valid VAT invoice.
5.5. The Client confirms all payments will be made payable to the Producer by either method of:
(a) Cheque; or
(b) Bank Transfer; or
(c) Direct debit.
5.6. Subject to clause 5.4(a), all payments by the method of cheque will be payable to Cincera Productions Ltd.
5.7. Subject to clause 5.4(b) and (c), BACS information will be provided on the front of invoices for payment.
5.8. In accordance with clause 5.1, the Client will be invoiced for each separate payment. Payment of the balance is due no later than fourteen Business Days of receipt of invoice. Payment of all outstanding amounts will be required in full before delivery of the Video to the Client.
5.9. Should any payments not be made, for whatever reason, the Producer reserves the right to postpone production of the Video, and any adverse consequences and arrangements for alternative payment will be the responsibility of the Client.
5.10. Subject to clause 5.8 the Producer will be entitled to bring legal action to recover any debts and non-payments in the event the Client has not made payment to the Producer for Services rendered.
5.11. The Fixed Fee shall be inclusive of charges of administration, assignment of a production manager, protection and storage of any data and material, including all text, pictures, illustrations, animations, soundtrack, background music, and any other relevant material, for a minimum of two years, and delivery of the Video after completion.
6.1. The Producer hereby grants and 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 (CPDA) in the Products, the Producer hereby agrees to procure the giving of similar consents from persons engaged or employed by the Producer and whose performances or intellectual property rights are incorporated in the Products, to enable the Client to make the fullest use of the Products without restriction or payment of further fees.
6.2. The Producer recognises that the Client has the unlimited right to edit, copy, alter, add to, take from, adapt and translate all or any of the Products after delivery by the Producer and hereby irrevocably and unconditionally waives the benefits of any provision of law relating to so-called “moral rights” (including without limitation any rights of the Producer under section 77 to section 85 of the CPDA) and any similar laws of any jurisdiction in relation to the Products. The Producer further agrees to procure the waiver of all such rights in favour of the
Client and its successors in title by all personal engaged or employed by the Producer and who contribute to the Video and to who such rights may accrue.
6.3. The Producer shall promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to these terms and conditions, and shall use all reasonable endeavours to procure that any third parties shall also do so as necessary. The Client shall reimburse the Producer for the reasonable costs properly incurred by it in complying with its obligation under this clause.
6.4. The Client agrees that the Producer may use the Client’s name and intellectual property rights solely to the extent necessary for the purpose of providing the Services, referring to them in paperwork and in discussions with third parties in order to indicate the nature of the Video, and including them in the Producer’s own promotional materials and showreels in accordance with clause 6.5. The Client warrants that no such use shall infringe the rights of any third party.
6.5. The Producer shall have the non-exclusive right for a period of five years from the Delivery Date to use extracts from the Video for its own promotional use in internal and client and prospective client presentations, showreels and on the Producer’s website. Each such extract must be no longer than one minute in length, and the extracts used in any one promotional item must not exceed five minutes cumulatively. The content of the extract and any statement made about the extract, the Video or the Client shall be approved in advance by the Client, and the Client shall have the right to request to the Producer that extracts (or any one or more of them) be removed and no longer used by the Producer if the Client reasonably considers that such use may be detrimental to the Client’s reputation or its commercial interests.
6.6. For the purposes of the Data Protection Act 1998, as amended, the Producer agrees and consents to the Client holding and processing personal data relating to the Producer and individuals connected with the Producer in any form, whether electronically or otherwise, provided that the Producer complies at all times with data protection law and best practices.
7. DATA PROTECTION
7.1. For the purposes of the Data Protection Legislation, the Client is the data controller and the Producer is the data processor (where Data Controller and Data Processor have the meaning defined in the Data Protection Legislation. The Client agrees and consents to the Producer holding and processing personal data relating to the Client and individuals connected with the Client in any form, whether electronically or otherwise, provided that the Producer complies at all times with Data Protection Legislation and best practices.
7.2. The Producer shall, in relation to any Personal Data processed in connection with the performance by the
Producer of our obligations:-
(a) process that Personal Data only on the written instructions of the Client;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any
measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly
assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
(d) assist the Client, at the Client's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Client without undue delay on becoming aware of a Personal Data breach; and
(f) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data.
7.3 The Client consents to the Producer’s appointment of third party processors of Personal Data under this agreement for the Producer to provide its services and obligations. The Producer confirms that it has entered or (as the case may be) will enter with the third party processors into a written agreement substantially on the third party’s standard terms of business. As between the Client and the Producer, the Producer shall remain fully liable for all acts or omissions of any third party processor appointed pursuant to this clause.
8.1. The Producer hereby warrants, represents and undertakes to the Client that:
(a) The Producer is fully entitled to enter into and to perform these terms and conditions;
(b) The Video (save to the extent that it incorporates material made available to the Producer by the Client) will be wholly original to the Producer and will not infringe the copyright or any other rights of any third party, including rights to privacy;
(c) The Video will not (including by way of inflection or gesture or otherwise) contain any defamatory matter or breach any contract or duty of confidence nor bring the Client into disrepute or subject it to criminal or civil proceedings, and does not incorporate any matter which constitutes contempt of court or breach any provision of law unless such material has been provided to the Producer by the Client and agreed in advance by the parties;
(d) The Producer is and will remain throughout the Term a registered data holder and controller for the purposes of the Data Protection Act 1998 and shall hold all and any data relating to these terms and conditions strictly in accordance with such legislation at all times;
(e) The Producer shall not make any commercial exploitation of any of the Products except as permitted under these terms and conditions; and
(f) The Producer shall indemnify the Client and keep the Client fully and effectively indemnified against all actions, costs, demands, losses, claims and expenses of whatsoever kind or nature arising from any actual or threatened breach or non-performance of any of the warranties, representations, undertakings or obligations on the Producer’s part contained in these terms and conditions.
8.2. In order to receive indemnification under clause 7.1(f), the Client shall promptly notify the Producer of a claim and shall grant the Producer the sole right to defend, control and settle such claim, and the Producer shall have the right at its own cost to have its own legal counsel present at all meetings and hearings relating to the claim. The Client shall not compromise, settle or otherwise resolve without the Producer’s prior written consent, not to be unreasonably withheld or delayed.
8.3. The Client hereby warrants, represents and undertakes to the Producer that:
(a) It is fully entitled to enter into and perform these terms and conditions;
(b) It shall either own, or have obtained and paid for licences to use, all materials provided to the Producer by the Client in connection with the production of the Video; and
(c) The Client shall indemnify the Producer and keep the Producer fully and effectively indemnified against all actions, costs, demands, losses, claims and expenses of whatsoever kind or nature arising from any actual or threatened breach or non-performance of any warranties, representations, undertakings or obligations on the Client’s part contained in these terms and conditions.
8.4. In order to receive the indemnification under clause 7.3(c), the Producer shall promptly notify the Client of any claim and shall grant the Client the sole right to defend, control or settle such claim and the Producer shall have the right to have their own counsel present at the Producer’s sole cost and expense.
The Producer shall keep the Product for 24 months from the date of Delivery after which the Product will be destroyed. The Producer retains a discretionary right to charge the Client a fee of £75 plus VAT both for retrieving the Product and for any other work which is necessary to comply with the Client’s instructions during the storage period.
The Producer shall not, without prior consent of the Client, make to any third party any statement or supply any information or photograph or trailer relating to the Video or to the Services or to the business or legal affairs of the other, other than to state that it is producing the Video (but this shall not prevent proper disclosures of information to the parties’ professional advisers or as required by law).
11. PUBLICITY AND PROMOTION
The parties agree in good faith to consult throughout the Term on publicity and promotional plans for the Client that involve use of the Video. All public relations, promotional and press activities undertaken shall be subject to the Client’s prior written approval (such approval not to be unreasonably withheld or delayed).
12.1. The Client may postpone or terminate the production of the Video on two weeks’ written notice.
12.2. On postponement or termination under clause 10.1, the Producer will ensure reasonable efforts to cancel any arrangements for Services made for the purpose of production of the Video (Arrangements). The Producer will not guarantee any money involved in the Arrangements will be completely or in part refunded from their cancellation.
12.3. On termination under clause 10.1, the Producer shall be entitled to receive payment:
(a) Of all sums that the Producer is, up to the date of termination, contractually obligated to pay third parties; and
(b) On a pro rata basis for Services rendered up to the date of termination and any sums to which the Producer is, up to the date of termination, contractually obliged to pay third parties. After the Deposit, the remaining pro rata amount shall be calculated according to the following:
(i) Termination within fourteen days of Confirmation of Order shall incur a 50% termination fee;
(ii) Termination within seven days of Confirmation of Order shall incur a 35% termination fee;
(iii) Termination within three days of Confirmation of the Order shall incur a 25% termination fee; or
(iv) Termination not within these days of Confirmation of the Order shall incur an 85% termination fee.
12.4 – Clause 12.3 is applicable regardless of the method of payment used in accordance with clause 5.5.
12.5. The Producer may postpone or terminate the production of the Video if any material, content, production, or any other relevant material is found to be in any way disorderly, offensive, illegal, indecent, damage the Producer’s reputation, or present a threat to the safety of the Producer or the general public.
12.6. The Producer may terminate this agreement with immediate effect by giving notice to the Client if:-
(a) The Client commits a material breach of any term of this agreement which breach is irremediable or fails to remedy that breach within a period of five Business Days after being notified to do so; or
(b) The Client repeatedly breaches any of the terms of this agreements in such a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms
of this agreement.
12.7. On postponement or termination under clause 10.4 or 10.5, should the Producer cancel the production of the Video, the Producer will refund any remaining costs of production to the Client after deducting all incurred expenses, including a pro rata amount of the production fee.
13. ASSIGNMENT AND OTHER DEALINGS
13.1 The Producer is entitled to 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.
13.2 The Client shall not assign the benefit of this agreement or any of the Services to any third party without the prior consent of the Producer. The Client shall remain primarily liable to the Producer for all its obligations under this agreement notwithstanding any such assignment.
14. THIRD PARTY RIGHTS
No one other than a party to this agreement shall have any right to enforce any of its terms.
15.1. Any notice or other communication given to a party under in connection with this agreement shall be in writing and shall be:
(a) Delivered by hand or by prepaid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) Sent by email to the address specified on the Producer’s website.
15.2. Any notice or communication shall be deemed to have been received:
(a) If delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address.
(b) If sent by prepaid first-class post or other next working day delivery service, at 9:00am on the second Business Day after positing or at the time recorded by the delivery service;
(c) If sent by email, at 9:00am on the next Business Day after transmission.
15.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.4. The provisions of this clause 11 shall not apply to the service of any proceedings or other documents in any legal action.
16. ENTIRE AGREEMENT
16.1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2. 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.
17.1. The Producer shall:
(a) Comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
(b) Not engage in any activity, practice or conduct which would constitute an offence under section 1, section 2 or section 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) Comply with such policies relating to ethics, anti-bribery and anti-corruption as the Client may provide to the Producer and update from time to time (Relevant Policies);
(d) Have and shall maintain in place throughout the term of this agreement their own policies and procedures, including adequate procedures under the Bribery Act 2010, to policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies, and clause 17.1(b),and will comply with them where appropriate;
(e) Promptly report to the Client any request or demand for undue financial or other advantage of any kind received by the Producer in connection with the performance of this agreement; and
17.2. Breach of this clause 14 shall be deemed a material breach of these terms and conditions under clause 10.5.
17.3. For the purpose of this clause 14, the meaning of adequate procedures and whether a person is associated with another shall be determined in accordance with section7(2) of the Bribery Act 2010 (and any guidance issued under sections 8 and 9 of that Act).
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
19. GOVERNING LAW
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.