Media Production ( Photography, Videography, Graphics work, Script writing, Filmmaking, VFX works)Terms and Conditions

1. Interpretation

1.1 In addition to terms defined in the Term Sheet, the following definitions apply in this Agreement:

Background Material: any material created by Freespace 4 media & marketing or the Primary Subcontractor outside the scope of the Services but incorporated into the Deliverables, including any Freespace editorial content or branding.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Client Materials: any material supplied by the Client for inclusion in the Deliverables, including any such material specified in the Term Sheet.

Delivery Date: the date when the final version of the Deliverables is delivered to the Client by Freespace 4 media & marketing. The estimated Delivery Date is set out in the Term Sheet.

Deliverables: any materials to be provided by Freespace 4 media & marketing, including scripts, voices, storyboards, design, music, rough cuts, and any physical media or digital files containing or comprising the finished Deliverables, and including in particular any Deliverables specified in the Term Sheet.

Fees: the Fees payable by the Client, as set out in the Term Sheet (subject to any adjustments pursuant to this Agreement).

Principal Subcontractor: Alpha Grid Media Limited.

Services: the services to be provided by Freespace 4 media & marketing under this Agreement, including production of the Deliverables and carrying out of the FT Responsibilities, as set out in the Term Sheet.

Third Party Materials: any material licensed by third parties and sourced by or on behalf of Freespace 4 media & marketing for inclusion in the Deliverables.

1.2 Any words following the terms including, include, in particular, for example or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Engagement

2.1 In consideration of payment to Freespace 4 media & marketing of the Fees, the Client engages Freespace, and Freespace agrees, to produce the Deliverables in accordance with the Term Sheet.

2.2 Freespace 4 media & marketing will comply with the FreespaceResponsibilities.

2.3 The Client will:

(a) provide the Client Materials in a timely fashion; and
(b) comply with the Client Obligations.

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 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.

3.2 The Client will appoint a representative (Client Representative) who will have the authority on behalf of the Client to accept as satisfactory the story outlines, scripts, voices, storyboards, design and music of the Deliverables.

3.3 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.

3.4 Freespace 4 media & marketing shall submit Deliverables as set out in the Production Schedule for the Client’s review and written acceptance, not to be unreasonably withheld or delayed.

3.5 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:

(a) 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”);
(b) Freespace 4 media & marketing 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 Freespace may require in order to respond to the Change Request). If Freespace 4 media & marketing accepts the Change Request, Freespace 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;
(c) the Client shall inform Freespace 4 media & marketing as soon as reasonably practicable whether it accepts or rejects Freespace’s 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;
(d) the Client shall not submit any Change Request directly to the Principal Subcontractor.

4. Obligations

4.1 The Client agrees that it will give Freespace 4 media & marketing access to the Client’s personnel as reasonably necessary for Freespace to provide the Services, and will (as reasonably necessary) instruct the Client’s personnel to:

(a) assist and support Freespace 4 media & marketing;
(b) comply with Freespace 4 media & marketing’s reasonable requests in making the Deliverables; and
(c) provide such information as Freespace 4 media & marketing may reasonably request.

5. Credit

The Client authorises Freespace 4 media & marketing to insert, or have the appropriate third party insert, credit for Freespace 4 media & marketing and/or the Principal Subcontractor as producer of the Deliverables on the end credits of the Deliverables, with its name and web address printed on all hard copies of the Deliverables and included alongside all online versions of the Deliverables.

6. Payment

6.1 The Client will pay the Fees as set out in the Term Sheet or as otherwise payable under this Agreement.

6.2 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 Freespace 4 media & marketing 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 Freespace 4 media & marketing 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.

6.3 The parties agree to comply with the applicable double tax treaty with respect of withholding taxes and Freespace 4 media & marketing 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.

6.4 If the Client fails to pay the Fees within the period specified in the Term Sheet, then, without limiting Freespace 4 media & marketing’s remedies under clauses 11 or 6.5, the Client will pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank PLC base rate from time to time. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client will pay the interest together with the overdue amount.

6.5 If the Client fails to make any payments when due under this Agreement Freespace 4 media & marketing will have the right (in addition to any other available rights and remedies) to suspend the Services until payment is received.

7. Rights

7.1 Subject to and with effect from payment by the Client in full of the Fees, and subject to clause 7.2, Freespace 4 media & marketing 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.

7.2 The assignment in clause 7.1 will not apply to any Background Material or Third Party Material. Background Material will remain the property of Freespace 4 media & marketing or the Primary Subcontractor (as applicable) and Third Party Material will remain the property of the applicable third party licensor. Freespace 4 media & marketing 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 Freespace 4 media & marketing.

7.3 Freespace 4 media & marketing will execute and deliver such documents and perform such acts as may be necessary for the purpose of giving full effect to clause 7.1, and will use reasonable commercial endeavours to procure that any third parties will also do so as necessary. The Client will reimburse Freespace 4 media & marketing for the reasonable costs properly incurred by it in complying with its obligations under this clause 7.3.

7.4 The Client agrees that Freespace 4 media & marketing 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 Freespace’s own promotional materials and showreels in accordance with clause 7.5. The Client warrants that no such use will infringe the rights of any third party.

7.5 Freespace 4 media & marketing 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, showreels and on Freespace’s 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 Freespace that the extracts (or any one or more of them) be removed and no longer used by Freespace 4 media & marketing if the Client reasonably considers that such use is detrimental to the Client’s reputation or its commercial interests.

8. Warranties

8.1 Freespace 4 media & marketing warrants to the Client that:

(a) it will perform the Services with reasonable care and skill; and
(b) it is fully entitled to enter into and to perform this Agreement; and
(c) 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.

8.2 The Client warrants to Freespace 4 media & marketing that:

(a) it is fully entitled to enter into and perform this Agreement;
(b) it will not do or permit to be done anything which may reasonably be interpreted by Freespace in any way as being prejudicial, detrimental or denigrating to FT’s brand or business;
(c) it will either own, or have obtained and paid for licences to use, all Client Materials, and the Client Materials will not infringe the copyright or any other rights of any third party; and
(d) 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.

8.3 Each party warrants that it will not seek to associate itself with the other party other than as permitted by this Agreement and it will not represent to any third party that the other party endorses it or its products and services nor hold itself out to any third party as representing the other party.

9. Indemnity

9.1 Freespace 4 media & marketing will indemnify the Client and keep the Client fully and effectively indemnified against actions, costs, demands, losses, claims and expenses of whatsoever kind or nature arising from any claim by a third party against the Client arising from a breach by Freespace of clause 8.1(c).

9.2 The Client will indemnify Freespace 4 media & marketing and keep Freespace fully and effectively indemnified against all actions, costs, demands, losses, claims and expenses of whatsoever kind or nature arising from:

(a) any claim by a third party against Freespace or the Primary Subcontractor arising from a breach by the Client of clause 8.2(c) or 8.2(d); or
(b) the Deliverables containing any defamatory matter or breach of any contract or duty of confidence, or incorporating any matter which constitutes contempt of court or breaches any provision of law.
9.3 In the event of a third party claim (“Claim”) giving rise to a claim under clause 9.1 or 9.2, the party claiming the indemnity (“indemnified party”) will:
(a) promptly notify the other party (“indemnifying party”) of the Claim;
(b) grant the indemnifying party the sole right to defend, control or settle the Claim; and
(c) not make any admissions, concessions or settlements in respect of the Claim other than with the prior written consent of the indemnifying party.

The indemnified party will have the right to have its own counsel present at its sole cost and expense.

10. Confidentiality

10.1 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.

10.2 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.

10.3 The provisions of this clause 10 will survive any termination of this Agreement.

11. Termination

11.1 Either of the parties will be entitled to terminate this Agreement immediately by notice in writing to the other party if:

(a) the other party commits any material or persistent breach of its obligations under this Agreement and fails to remedy that breach (if capable of remedy) within 14 days after being given written notice by the first party to do so; or
(b) the other party ceases to carry on its business or has a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or passes a resolution for its winding up or a court of competent jurisdiction makes an administration order or liquidation order or similar order, or enters into any voluntary arrangement with its creditors, or is unable to pay its debts as they fall due or any event analogous to the other occurs in any jurisdiction.

11.2 FT will be entitled to terminate this Agreement immediately by notice in writing to the Client if:

(a) the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default seven days after being notified by Freespace 4 media & marketing in writing to make such payment;
(b) there is a change in the control (meaning the majority shareholding or the capacity to control day to day management) of the Client; or
(c) the Client (or any of its shareholders or directors) becomes subject to any Sanction, or continuation of this Agreement would (in the reasonable opinion of Freespace 4 media & marketing) expose Freespace or any of its affiliated companies to any Sanction, where “Sanction” means any sanction, prohibition or restriction under United Nations resolutions or the trade or economic sanctions, laws or regulations of the European Union, United Kingdom, Hong Kong or United States of America.

11.3 If Freespace 4 media & marketing terminates this Agreement under clauses 11.1 or 11.2 above then the Client will not be entitled to recover any Fees already paid to Freespace 4 media & marketing and will remain fully liable for any amount of the Fees still to be paid. For the avoidance of doubt no refund or reduction in the Fees will be due to the Client as a result Freespace 4 media & marketing exercising its right of termination under clauses 11.1 or 11.2.

11.4 If Freespace 4 media & marketing determines, in its reasonable opinion, that the production and/or publication of the Deliverables could seriously prejudice its reputation or brand or be otherwise editorially inappropriate then Freespace 4 media & marketing will have the right to terminate this Agreement at any time upon written notice to the Client. If Freespace 4 media & marketing terminates this Agreement in accordance with this clause 11.4 (except in cases of the Client’s default), a full refund of the Fees paid by the Client up until the date of cancellation will be made to the Client and this Agreement will automatically terminate.

11.5 Any termination or expiry of this Agreement for whatever reason will be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and will not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination (including without limitation payment of the Fees).

11.6 If Freespace 4 media & marketing is unable to perform its obligations under this Agreement by reason of a Force Majeure Event, the performance of Freespace’s obligations under this Agreement will be suspended. Freespace 4 media & marketing will not be liable for any failure to perform or delay in performing any obligation under this Agreement if this is caused by a Force Majeure Event. If the Force Majeure Event hinders, delays or prevents the performance by Freespace 4 media & marketing of its obligations under this Agreement for more than 30 days, either party may immediately terminate this Agreement by written notice to the other party (provided that the Force Majeure Event is still continuing on the date of that notice).

12. Limitations of Liability and Indemnities

12.1 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.

12.2 Neither party will be liable to the other for any indirect, special, incidental or consequential loss, damage, costs, expenses or other claims whatsoever.

12.3 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.

13. Anti-Bribery

13.1 Each party will at all times comply with all applicable laws related to bribery, corruption and related matters including the US Foreign Corrupt Practices Act and the UK Bribery Act.

13.2 The Client warrants and represents that:

(a) it has not done, nor will it do, any act in breach of clause 13.1; and
(b) it has no reason to believe that any of its employees, agents, or representatives have done, nor will they do, any act in breach of clause 13.1.

13.3 The Client will report any breach or potential breach of clauses 13.1 or 13.2 to FT as soon as it becomes aware of them.

13.4 FT will have the right to terminate this Agreement with immediate effect should it have reason to believe the Client acted, or will act, in breach of clauses 13.1 or 13.2 without any further liability to the Client.

14. General

14.1 Nothing in this Agreement will constitute or be deemed to constitute a partnership between Freespace 4 media & marketing and the Client or constitute or be deemed to constitute Freespace or the Client as agent of the other for any purpose whatever and neither Freespace nor the Client will have authority or power to bind the other or to contract in the name of and create a liability against the other or to represent the other in any matter whatsoever.

14.2 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that or any other right or remedy.

14.3 This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and will have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement. Nothing in this sub-clause will limit or exclude any liability for fraud.

14.4 The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

14.5 Each provision of this Agreement is severable and distinct from the others. If a provision of this Agreement is, or becomes, to any extent illegal, invalid or unenforceable, it will to that extent be deemed not to form part of this Agreement but that will not affect the legality, validity or enforceability of any other provision of this Agreement, which will continue in force and effect provided that the operation of this clause would not negate the commercial intent and purposes of the parties under this Agreement.

14.6 Subject to clause 14.7, this Agreement is not intended to nor will it create any rights, entitlements, claims or benefits enforceable by any person that is not a party to it. Accordingly, no person will derive any benefit or have any right, entitlement or claim in relation to this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999.

14.7 The Primary Subcontractor will have the benefit of (and the right to enforce) clauses 7.3 and 7.5 of this Agreement.

14.8 No provision of this Agreement may be amended, modified, discharged or terminated other than by the express written agreement of the parties.

14.9 This Agreement may be executed in counterparts, each of which when executed and delivered is an original, but together constitute the same document. Transmission of an executed counterpart of the Term Sheet by email will take effect as delivery of an executed counterpart of this Agreement.

14.10 Neither party will assign or otherwise transfer this Agreement or any of its rights or obligations under it, whether in whole or in part, without the prior written consent of the other, except that Freespace 4 media & marketing may subcontract all or part of its duties and obligations (including to the Primary Subcontractor) provided that it will remain liable to the Client for all acts and/or omissions of its subcontractors as if such act or omission had been committed or omitted by Freespace 4 media & marketing itself.

14.11 Any notice required to be given under this Agreement will be made in writing and will be delivered by hand, recorded delivery or courier to the other party and will be deemed to have been received, if delivered by hand, at the time and date of delivery; and if sent by recorded delivery or courier, upon receipt (as evidenced by signature). Any such communication made by Freespace 4 media & marketing will be sent to the Freespace 4 media & marketing head office.

15. Disputes and Governing Law

15.1 Each party agrees to respond promptly to any issues referred to it by the other party relating to this Agreement and will seek to resolve any disputes arising through its Relationship Manager as quickly and effectively as possible.

15.2 If the parties cannot satisfactorily resolve any dispute within 14 days of referral to the Relationship Managers then that dispute will be escalated to a director (or equivalent) of both parties. If the parties cannot satisfactorily resolve any dispute within 14 days of referral to a director (or equivalent) then either party may seek its legal remedies as provided in clause 15.4.

15.3 This clause 15 will not restrict either party from seeking immediate legal or equitable relief for any infringement of its intellectual property rights, or for payment of any amount of money not subject to a genuine, good faith dispute.

15.4 All contractual and non-contractual claims arising from or in connection with this Agreement will be governed by and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English courts, except that (for the exclusive benefit of Freespace 4 media & marketing) Freespace retains the right to bring proceedings against the Client in the applicable courts of the Client’s place of business.

16. Version

16.1 This version of the Media Production ( Videography, Photography, Filmmaking, Script Writing, graphics work ) Terms and Conditions applies to Term Sheets executed by the Freespace 4 media & marketing and the Client at any time from 1 May 2019 until this version of the Video Production Terms and Conditions is superseded by a new version.

16.2 Freespace 4 media & marketing may at any time and at its sole discretion change, update or amend these Video Production Terms and Conditions by posting a new version of the Media Production Terms and Conditions on this page. Any such change under this clause 16.2 will not affect any Term Sheets that have already been executed by Freespace 4 media & marketing and the Client.