1 – INTERPRETATION
3 – OBLIGATIONS
5 – CREATIVE CONTROL
6 – CREDIT
7 – RIGHTS
8 – WARRANTIES
9 – CONFIDENTIALITY
11 – TERMINATION
13 – GERNEAL
The Client’s attention is particularly drawn to the provisions of clause 4.
The following definitions and rules of interpretation apply in this Contract.
1.1 – Definitions:
BNL: BNL Productions whose principal place of business is at 21A High Street, Lurgan, Co. Armagh, BT66 8AH.
Business Day: a day (other than a Saturday or Sunday) in which banks in Northern Ireland are generally open for normal business.
Client Representative: the representative of the client as named in the Quotation Summary.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions.
Contract: the contract between BNL and the Client for the supply of Services incorporating the Quotation Summary together with these Conditions.
Delivery Materials: those materials (if any) which BNL have stated on the Quotation Summary may be made available to the Client upon acceptance of the Final Cut in accordance with these terms and conditions.
Final Cut: the finalised version of the Media as identified and marked as such by BNL.
Order: the Client’s order for Services as set out in the Client’s written or telephone acceptance of the Quotation Summary.
Payment Schedule: the schedule of payments set out in the Quotation Summary.
Production Schedule: the agreed dates, times and locations for the preparation, production and post-production of the Media, as set out in the Quotation Summary.
Products: the products of the Services, including the Rough Cut, Final Cut, the Delivery Materials and all performances and literary, dramatic, artistic and musical material incorporated by BNL into the Media.
Quotation Summary: the quotation issued by BNL to the Client which sets out details of the Services to be provided together with the Rates and any special conditions.
Rates: the Rates for the Services payable by the Client to BNL in accordance with clause 4.
Revised Final Cut: shall have the meaning as set out in clause 5.5.
Revised Rough Cut: shall have the meaning as set out in clause 5.3.
Rights: all intellectual property rights of whatever nature including the entire copyright throughout the world including all extensions and renewals and any rights in performances.
Rough Cut: the rough version of the Media as identified and marked as such by BNL.
Services: the services to be provided by BNL to the Client as set out in the Quotation Summary.
Storage Fee: the fee payable by the Client to BNL as consideration for the storage of the Products on the BNL server which shall accrue at a rate of £50 per month or part thereof.
Termination Materials: such materials if (any) that BNL may at their sole discretion provide to the Client upon termination of the Contract where the Delivery Materials have not already been provided.
Media: the Media as described in the Quotation Summary.
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, definition, phrase or term preceding those terms.
02. BASIS OF CONTRACT
2.1 – The Order constitutes an offer by the Client to purchase Services from BNL in accordance with these Conditions.
2.2 – The Order shall only be deemed to be accepted when BNL issues written acceptance of the Order or begins commencement of the Services (whichever is the earlier) at which point and on which date the Contract shall come into existence (Commencement Date)
2.3 – The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of BNL which is not set out in the Contract. Any descriptive matter or advertising issued by BNL are issued for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract or any other contract between BNL and the Client for the supply of Services.
2.4 – These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 – Any Quotation Summary given by BNL shall not constitute an offer and is valid only for a period of 30 days from the date of the Quotation Summary.
3.1 – BNL agrees that it shall:
(a) perform the Services in willing co-operation with the Client via the Client Representative and where requested by the Client its other professional advisers and service providers;
(b) use reasonable endeavours to meet any performance dates specified in writing by the Client but any such dates shall be estimates only and time shall not be of the essence for performance of the Services; and
(c) upon acceptance of the Final Cut or Revised Final Cut under clause 5.5, provide the Delivery Materials to the Client.
(d) hold a copy of all footage and completed project for up to two weeks after the project has been completed and signed off by the end client. After this two week period all footage may be deleted.
3.2 – The Client agrees that it shall:
(a) provide interview questions, scripts and all other such materials as required for filming no later than forty-eight hours prior to filming;
(b) provide all logos and text (including text to be included in the DVD) no later than fourteen days prior to the estimated delivery date of the Final Cut;
(c) pay for all commercial music licences as required for use in the Media;
(d) ensure that any information it provides in relation to the Services is complete and accurate;
(e) co-operate with BNL in all manners relating to the Services;
(f) provide BNL, its employees, agents, consultants and subcontractors, with access to the Client’s premises and other facilities as reasonably required by BNL to perform the Services;
(g) provide access to digital information, company graphics and website for use in the Media; and
(h) inform all employees, agents, guests and all relevant persons of the proposed filming and obtain relevant release forms (including in relation to minors) duly signed by all such persons (or their parents or guardians as relevant).
3.3 – The Client agrees to indemnify BNL for any liabilities, costs, expenses, damages and losses suffered or incurred by BNL as a result of the Client providing false or misleading information or breaching its obligations as set out in this clause 3.
3.4 – If BNL’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client to perform any relevant obligation (Client Default):
(a) BNL shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays BNL’s performance of any of its obligations;
(b) BNL shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from BNL’s failure or delay to perform the Services;
(c) the Client shall reimburse BNL on written demand for any costs or losses sustained or incurred by BNL arising directly or indirectly from the Client Default.
04. RATES AND PAYMENT: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
4.1 – The Rates for the Services shall be set out in the Quotation Summary.
4.2 – From the date of acceptance (express or deemed) of the Rough Cut, Revised Rough Cut, Final Cut or Revised Final Cut under clause 5 the Storage Fee shall be payable by the Client to BNL upon request from BNL.
4.3 – The Client shall pay all sums due under this Contract in accordance with the Payment Schedule (as relevant) and shall pay each invoice submitted by BNL in full and cleared funds within 30 days of the date of the invoice. Time for payment shall be of the essence of the Contract.
4.4 – All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by BNL to the Client, the Client shall, on receipt of a valid VAT invoice from BNL, pay to BNL such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
4.5 – Without limiting any other right or remedy of BNL, if the Client fails to make any payment due to BNL under the Contract by the due date for payment (Due Date), BNL shall have the right to charge interest on the overdue amount calculated on a daily basis from the Due Date until the actual payment of the overdue amount at the annual rate of 4% above the base rate of the Bank of England at the date of this Contract.
4.6 – In the event that the Client fails to make payment on the Due Date, BNL shall also have the right to suspend the Services, without liability to the Client, until payment is made in full.
4.7 – The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against BNL in order to justify withholding payment of any such amount in whole or in part. BNL may, without limiting its other rights or remedies, set off any amounts owing to it by the Client against any amount payable by BNL to the Client.
4.8 – BNL shall have the right to increase the Rates in the event of an increase in costs outside of the control of BNL resulting in an increase in BNL’s cost of providing the Services. BNL shall give the Client one months’ notice of any such increase in Rates in the form of a revised Quotation Summary. In the event that the parties fail to reach agreement on such revised Rates, either party may terminate the Contract and the Client shall pay all outstanding sums owed to BNL immediately.
05. CREATIVE CONTROL
5.1 – 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 Media provided that BNL shall, in its absolute discretion but with full discussion with the Client and giving good faith consideration to the views of the Client, have final editorial and artistic control over the Media.
5.2 – The Client Representative shall have the right on behalf of the Client to accept as satisfactory the story outlines, scripts, voices, storyboards, design and music of the Media and the Client shall be responsible for any increased costs associated with any lengthening of the Production Schedule necessitated by the exercise of such right, other than the cost of changes arising from acts or omissions of BNL.
5.3 – The Client’s Representative shall have the opportunity to accept, or refuse to accept, the Rough Cut. The Client via the Client Representative only, shall be entitled to request one set of reasonable amendments within fourteen days of receipt of the Rough Cut which shall be undertaken by BNL at its own cost (Revised Rough Cut). The Client Representative must submit all of the proposed amendments in one go to BNL in bulleted email format. BNL may at its sole discretion refuse to make any amendments that are not notified in this manner. BNL will then submit to the Client the Revised Rough Cut and the provisions of this clause will apply again save that any further request for amendment by the Client after provision of the Revised Rough Cut shall be subject to charge by BNL at their standard hourly rates to cover reasonable costs necessarily incurred as a result of the second non-acceptance, such costs to be paid within 30 days of the Client’s receipt of a valid invoice for them.
5.4 – If the Client does not request amendments of the Rough Cut within fourteen days of receipt or of the Revised Rough Cut within two days of receipt, acceptance shall be deemed to have occurred fourteen days from receipt of the Rough Cut or Revised Rough Cut as the case may be.
5.5 – The Client’s Representative shall have the opportunity to accept, or refuse to accept, the Final Cut. The Client via the Client Representative only shall be entitled to request one set of reasonable amendments, giving written reasons for non-acceptance of the Final Cut, within fourteen days of receipt of the Final Cut which shall be undertaken by BNL at its own cost (Revised Final Cut). The amendments must be submitted by the Client Representative in one go in bulleted email format and BNL may at its sole discretion refuse to accept any amendments not submitted in this manner. BNL will then submit to the Client the Revised Final Cut and the provisions of this clause will apply again save that any further request for amendment by the Client after provision of the Revised Final Cut shall be subject to charge by BNL at their standard hourly rates to cover reasonable costs necessarily incurred as a result of the second non-acceptance, such costs to be paid within 30 days of the Client’s receipt of a valid invoice for them.
6.1 – Subject to BNL duly rendering the Services and not being in breach of any of its material obligations under this Contract, the Client authorises BNL to insert credit as the producer of the Media, with its name and web address printed on all hard copies of the Media and included alongside all online versions of the Media.
7.1 – The Client acknowledges that, unless otherwise agreed in writing between the parties, BNL shall retain the Rights in the Products.
7.2 – Subject to compliance by the Client to the Contract (including for the avoidance of doubt the payment of all sums payable under the Contract), BNL hereby grants to the Client a perpetual non-exclusive worldwide licence of the Rights in the Media for its commercial purposes.
7.3 – The Client agrees that BNL may use the Client’s name and intellectual property rights solely to the extent necessary for the purpose of providing the Services and including them in BNL’s own promotional materials in accordance with clause 7.4. The Client warrants that no such use shall infringe the rights of any third party.
7.4 – BNL shall have the non-exclusive right to use extracts from the Media for its own promotional use in internal and client and prospective client presentations and on BNL’s website. The Client shall have the right to request to BNL that the extracts (or any one or more of them) be removed and no longer used by BNL if the Client reasonably considers that such use may be detrimental to the Client’s reputation or its commercial interests.
8.1 – The Client hereby warrants, represents and undertakes to BNL that:
(a) it is fully entitled to enter into and perform this Contract;
(b) it shall either own, or have obtained and paid for licences to use, all materials provided to BNL by the Client in connection with the production of the Media; and
(c) the Client shall indemnify BNL and keep BNL 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 Client’s part contained in this Contract.
8.2 – Neither party shall be liable to the other party for incidental, consequential, special or punitive damages or loss of profits which the other party may suffer arising out of any breach of this Contract.
9.1 – A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 9 shall survive termination of the Contract.
10. LIMITATION OF LIABILITY
10.1 – Nothing in these Conditions shall limit or exclude BNL’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation.
10.2 – Subject to clause 10.1:
(a) BNL shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Contract; and
(b) BNL’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the total sum paid for the Services by the Client to which the claim relates.
10.3 – Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.4 – This clause 10 shall survive termination of the Contract.
11.1 – Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 103 of the Insolvency (Northern Ireland) Order 1989 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 242 of the Insolvency (Northern Ireland) Order 1989 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction or corporate restructure of that other party with a view to carrying on the business within an alternative corporate structure;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1 (b) to clause 11.1 (i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction or corporate restructure of that other party with a view to carrying on the business within an alternative corporate structure; or
(i) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
11.2 – Without limiting its other rights or remedies, BNL may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
11.3 – Without limiting its other rights or remedies, BNL shall have the right to suspend provision of the Services under the Contract if the Client becomes subject to any of the events listed in clause 11.1(b) to clause 11.1(l), or BNL reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the Due Date for payment.
12. CONSEQUENCES OF TERMINATION
12.1 – On termination of the Contract for any reason:
(a) the Client shall pay to BNL:
(i) BNL’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, BNL shall submit an invoice, which shall be payable by the Client immediately on receipt;
(ii) on a pro rata basis for services rendered up to the date of termination of all sums that BNL is, up to the date of termination, contractually obligated to pay to third parties; and
(iii) upon request, and with such payment to be made prior to the provision of the Termination Materials to the Client, such costs as may be incurred by BNL in providing the Termination Materials to the Client;
(b) neither party shall have any further obligation to the other under this Contract except as stated in this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall remain unaffected; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13.1 – Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of BNL including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of BNL or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, adverse weather conditions or default of suppliers or subcontractors.
(b) BNL shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents BNL from providing any of the Services for more than 12 weeks, BNL shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
13.2 – Assignment and subcontracting:
(a) BNL may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) Where BNL subcontracts the Services, BNL shall be free to choose at its sole discretion which subcontractors it uses.
(c) The Client shall not, without the prior written consent of BNL, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.3 – Notices:
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number or by email to the other party’s principal contact.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, if sent by fax, on the next Business Day after transmission, or if sent by email at the time of sending providing that a valid delivery receipt has been received.
(c) This clause 13.3 shall not apply to the service of any proceedings or other documents in any legal action.
13.4 – Waiver:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
13.5 – Severance:
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.6 – No partnership:
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
13.7 – Third parties:
A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.8 – Variation:
Any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the parties.
13.9 – Governing law and jurisdiction:
This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of Northern Ireland and the parties irrevocably submit to the exclusive jurisdiction of the courts of Northern Ireland.