1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms of Business and any Estimate the following expressions shall have the following meanings:
|the Estimate agreed between the parties incorporating these Terms of Business.
|the payment for the Services and any other fees, charges, costs or expenses arising under the Agreement.
|the Client purchasing Services from MAI as specified on the Estimate.
|the technical, support, creative and artistic cast and crew and other third parties engaged directly by the Client.
|any photographic, audio-visual or similar works and the mediums embodying them to be supplied to the Client by MAI as a result of the Services as listed on the Estimate.
|the document setting out and specifying the details of the Services to be performed by MAI for the Client and the Estimated Budget.
|the estimated cost of providing the Services, including allocation of costs for specific purposes, as set out in the Estimate.
|Mascioniassociati International Limited incorporated and registered in England and Wales with company number 06927518 whose registered office is at 2-4 Packhorse Road, Gerrards Cross, Buckinghamshire, England, SL9 7QE.
|the technical, support, creative and artistic cast and crew engaged directly by MAI.
|the services to be provided by MAI and MAI Contributors as described in the Estimate relating to the production, management and co-ordination of the Shoot.
|the photographic and/or audio-visual shooting session undertaken in accordance with the Estimate.
|Terms of Business
|these terms and conditions as set out in clauses 1 to 11 (inclusive).
1.2 The headings in these Terms of Business are for ease of reference only and shall not affect the construction or interpretation of any provision to which they refer.
1.3 Any reference to a statutory provision shall include that provision as from time to time modified or re-enacted, provided that in the case of modifications or re-enactments made after the date of an Agreement the same shall not have effected a substantive change to that provision.
1.4 Unless the context requires otherwise, words denoting the singular include the plural and vice versa and words denoting any one gender include all genders and vice versa.
1.5 Any reference to a person shall include an individual, partnership, corporate or unincorporated body.
1.6 References to any party shall include its personal representatives, lawful successor in title and permitted assigns.
1.7 A reference to writing or written includes email.
1.8 The words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
2. TERMS OF BUSINESS AND ESTIMATE
2.1 Following an expression of interest from a potential client MAI may, at its sole discretion, produce an Estimate and provide the same to the potential client. A Client’s signature and return of the Estimate constitutes an offer by the Client to purchase the Services on these Terms of Business and MAI’s signature of the Estimate shall establish a contract for the supply of the Services on these Terms of Business.
2.2 No addition to, variation of, exclusion or attempted exclusion of any provision of an Estimate shall be binding on MAI unless signed in writing by a duly authorized representative of MAI. These Terms of Business will be incorporated into each Estimate, to the exclusion of any other terms or conditions implied by law, trade custom, practice or course of dealing or any other standard terms and conditions.
2.3 In the event MAI agrees more than one Estimate with the same Client, then each Estimate constitutes a separate agreement and termination of any one Estimate shall not affect termination of any other Estimate (although this shall not prevent more than one Estimate being subject to termination if termination circumstances apply to them). Each Estimate incorporating these Terms of Business shall be referred to as an Agreement in these Terms of Business.
2.4 If there is any conflict or inconsistency between any provision of these Terms of Business and an Estimate, then the provisions of these Terms of Business shall prevail unless specifically stated in writing on the relevant Estimate with reference to this clause 2.4.
3.1 In consideration of payment to MAI of the Charges, the Client engages MAI, and MAI agrees, to perform the Services.
3.2 MAI shall:
3.2.1 perform the Services in a timely manner and with reasonable skill and care;
3.2.2 perform the Services in accordance with good industry practice and applicable laws and regulations; and
3.2.3 maintain appropriate liability insurance for MAI Contributors.
3.3 The parties agree to consult in good faith with each other over the creative and artistic direction of the Shoot. The Client shall, following discussion with MAI and after giving good faith consideration to MAI’s views as a professional production company, have final creative and artistic control over the Shoot and any Deliverable Materials.
3.4 The parties agree and acknowledge that a Shoot is a creative and artistic activity, such that the Client and Client Contributors may request changes or additions to the Services from time to time, including on short notice. MAI shall use reasonable endeavours to comply with such requests and the Client shall reimburse MAI for the associated Charges. The parties will use reasonable endeavours to reduce variations to the Services and the associated Charges to writing, including by exchange of email, but this shall not prevent an oral agreement to vary the Services and pay additional Charges binding the parties.
3.5 The Client accepts and acknowledges that MAI’s performance of the Services depends on the full and timely co-operation of the Client and the Client Contributors. If MAI’s performance of its obligations under an Agreement is prevented or delayed by any act or omission of the Client or a Client Contributor, MAI shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay. The Client shall be liable to pay to MAI, on demand, all reasonable costs, charges or losses sustained or incurred by MAI that arise directly or indirectly from the Client or a Client Contributor’s negligence or failure to perform or delay in the performance of any of its obligations in relation to an Agreement.
3.6 MAI may subcontract or delegate to a third party the performance of the Services without the prior written consent of the Client. MAI will retain management of such subcontractors or third parties and is otherwise responsible for their conduct, the performance of the Services and production of any Deliverable Materials. MAI will ensure that all such subcontractors and third parties have entered agreements with MAI containing provisions compatible with these Terms of Business.
3.7 The Client agrees that MAI may use the Client’s name and intellectual property rights for the purpose of providing the Services, such as by including them on a Deliverable Materials, referring to them in paperwork and in discussions with third parties in order to indicate the nature of the Shoot. The Client warrants that such use shall not infringe the rights of any third party.
4. DELIVERABLE MATERIALS
4.1 This clause shall apply only when an Estimate identifies that MAI is to provide Deliverable Materials to the Client.
4.2 MAI shall deliver the Deliverable Materials to the Client on or before the delivery date specified in the Estimate. The Client shall confirm either its acceptance or non-acceptance of the Deliverable Materials with reasons in writing within seven (7) days of receipt. If MAI does not receive notice of such acceptance or non-acceptance within that period, the Client will be deemed to have accepted the Deliverable Materials.
4.3 If the Client declines to accept any of the Deliverable Materials, MAI will then have thirty (30) days in which to make all necessary changes to them, in consultation with the Client. MAI will then submit to the Client the revised material or replaced materials and the provisions of clause 4.2 and this clause 4.3 will apply again save that any further request for amendment by the Client after the second review shall be subject to charge by MAI to cover reasonable costs incurred as a result of the further amendments.
4.4 MAI hereby grants and assigns to the Client absolutely any and all copyright belonging to MAI and MAI Contributors in the Deliverable Materials 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 rental and lending rights and, to the extent relevant, by way of present assignment of future copyright and 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 (CDPA) in the Deliverable Materials.
4.5 MAI shall enter agreements with all MAI Contributors compatible with the assignment of copyright in clause 4.4 and hereby agrees to procure the giving of similar consents from all persons engaged or employed by MAI and whose performances or intellectual property rights are incorporated in the Deliverable Materials.
4.6 MAI shall promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this clause 4, and shall use all reasonable endeavours to procure that any third parties shall also do so as necessary. The Client shall reimburse MAI for reasonable costs properly incurred by MAI in complying with its obligations under this clause 4.6.
5. CHARGES AND PAYMENT
5.1 In consideration of the provision of the Services the Client must pay the Charges without deduction or set off and in accordance with the terms of the Estimate and these Terms of Business.
5.2 The Client shall make an advance payment to MAI of 75% of the Estimated Budget in accordance with the time period specified on Estimate. MAI reserves the right at its sole discretion not to commence performance of, or begin any preparations to perform, the Services until the Client has made the advance payment. The Client acknowledges any failure to make the advance payment may negatively affect the timing and performance of the Services and may incur additional Charges.
5.3 MAI will issue a balancing invoice to the Client for the remainder of the Charges following performance of the Services. The Client acknowledges the Estimated Budget is an estimate and MAI may increase the Charges by up to 10% of the Estimated Budget without prior Client approval.
5.4 In the event Services are cancelled or postponed for any reason, MAI shall be entitled to Invoice the Client for that element of the Charges identified as the production fee and all costs and expenses incurred by MAI prior to the cancellation or postponement.
5.5 The Client shall pay each invoice submitted to it by MAI, in full and in cleared funds, within 30 days of receipt. All Charges and other fees are exclusive of Value Added Tax and other sales taxes, which will be added at the appropriate rate. The Client shall make all payments under an Agreement without withholding or deduction of, or in respect of, any tax, levy, impost, duty, charge or fee (collectively “Tax”) unless required by law. If any such withholding or deduction is required, the Client shall pay to MAI such additional amount as will ensure that MAI receives the same total amount that it would have received if no such withholding or deduction had been required.3
5.6 Without prejudice to any other right or remedy that it may have, if the Client fails to pay any sum to MAI on the due date:
5.6.1 the Client shall pay interest on the overdue amount at the rate of % per annum above [FULL NAME OF BANK]’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount;
5.6.2 MAI may not supply any Deliverable Material; and
5.6.3 MAI may suspend all Services until payment has been made in full.
6.1 Each party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required by law, or any legal or regulatory authority, any confidential information concerning the business or affairs of the other party (or of any member of the group of companies to which the other party belongs) which may have (or may in future) come to its knowledge and each of the parties shall use its reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters.
6.2 The obligations in clause 6.1 shall continue to apply notwithstanding termination or expiry of the Agreement, but shall not apply to any confidential information that comes into the public domain other than through a breach of an Agreement.
6.3 The Client agrees its name may to be added to MAI’s client list, and for MAI to refer to the Client as a client and user of MAI’s services in its marketing and public relations materials. The Client agrees MAI shall have the non-exclusive right to use images or extracts from the Deliverable Materials or other photographs and audio-visual material created at the Shoot for its own promotional use in internal and client and prospective client presentations, showreels and on MAI’s website.
7. TERMINATION AND SUSPENSION
7.1 Either party may terminate an Agreement with immediate effect by giving written notice to the other if:
7.1.1 the other party commits a material breach of any term of an Agreement which is incapable or remedy or (if such breach is capable of remedy) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
7.1.2 there is at any time a material change of control (as that phrase is defined in Section 840 of the Income and Corporation Taxes Act 1988) of the other party;
7.1.3 an encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other party;
7.1.4 that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order;
7.1.5 that other party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under the Agreement);
7.1.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other party; or
7.1.7 that other party ceases, or threatens to cease, to carry on business.
7.2 Any provision of an Agreement that expressly or by implication is intended to come into or continue force on or after termination or expiry of the Agreement shall remain in full force and effect.
7.3 Upon termination (or expiry) of an Agreement for any reason:
7.3.1 the Client shall immediately pay to MAI all of MAI’s outstanding unpaid invoices and interest and, in respect of Services which have been performed but for which no invoice has been submitted, MAI may submit an invoice, which shall be payable immediately on receipt; and
7.3.2 subject as otherwise provided herein and to any rights, obligations or liabilities which have accrued prior to termination, neither party shall have any further obligation to the other under the Agreement.4
7.4 In the event any Client Participant does not attend a shoot or leaves a shoot early for any reason, you will not be entitled to suspend or cancel the shoot and will not receive any refund and must pay any additional costs and charges for any agreed extension to the shoot. For the purposes of this paragraph, Client Participants will include all its staff, contractors, suppliers and any other person participating in the shoot or attending the location or studio on behalf of the Client.
8. LIMITATION OF LIABILITY
8.1 The following provisions set out the entire financial liability of MAI (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors and MAI Contributors) to the Client in respect of:
8.1.1 any breach of an Agreement howsoever arising;
8.1.2 any use made by the Client of the Services, the Deliverable Materials or any part of them; and
8.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with an Agreement.
8.2 Subject to Clause 8.5 below, MAI’s total aggregate liability to the Client in connection with the Agreement shall be limited to the amount payable as Charges.
8.3 Subject to Clause 8.5, neither party shall, in any event, be liable or responsible to the other for any:
8.3.1 loss of documentation, loss or corruption of data, loss of profits or of contracts, remedial costs, loss of operation or staff time, costs of obtaining substitute products or services and loss of goodwill or anticipated savings (in each case whether direct or indirect); or
8.3.2 any indirect, incidental, special or consequential loss, damage, cost or expense of any kind whatsoever;and in each case howsoever caused whether arising under contract, tort (including negligence and breach of statutory duty) or otherwise, even if it has been advised of the possibility of such loss.
8.4 The express warranties given in each Agreement are in lieu of all warranties, conditions, terms, representations, undertakings and obligations (express or implied) imposed by statute, common law or otherwise all of which are hereby excluded to the maximum extent permitted by law.
8.5 The above exclusions and limitations shall apply to the fullest extent permissible at law but neither party excludes or limits liability for death or personal injury caused by its negligence or that of its employees or agents and for which it is responsible, or for fraud or wilful deceit.
9. DISPUTE RESOLUTION
9.1 If any dispute or grievance arises between the parties out of an Agreement, before taking any further action (such as requiring the party in default to remedy an alleged fault within a specific time), each party agrees to use reasonable endeavours to arrange for the dispute to be discussed between a representative of each party who is a board director or of equivalent executive authority and who has authority to settle the dispute and who has, where possible, no direct involvement in the relevant matter.
9.2 Should the escalation mechanism set out in clause 9.1 fail to be effective, the parties will attempt to settle the dispute or grievance by mediation in accordance with the Centre for Dispute Resolution Model Procedure, or, failing that, a procedure administered by such other similar organisation as the President for the time being of the Law Society of England and Wales shall nominate. Unless the parties agree otherwise, the costs of the mediation shall be borne equally by each of them. The obligations contained in this clause 9 shall not apply in respect of any dispute relation to or concerning the payment of Charges by the Client to MAI.
10. FORCE MAJEURE
10.1 Neither party shall be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled to a reasonable extension of time for the performance of such obligations. If the affected party has been prevented from performing its obligations under the Agreement for a period of 60 days (or such other period agreed between the parties in writing), then either party may terminate an Agreement immediately by providing notice to the other party.
10.2 In the event of any force majeure (including a sequence of events of force majeure) which has lasted or is likely to last for longer than 7 days the parties agree to discuss in good faith whether the respective rights and obligations of each party under an Agreement can be amended in order to alleviate the effects of the force majeure and best bring into effect the original intentions of the parties.
11.1 Any variation or amendment of these Terms of Business must be in writing, referenced to the Terms of Business, and signed by an authorised representative of both parties.
11.2 Neither party may assign, transfer, charge or deal in any other manner with an Agreement, without the prior written consent of the other, such consent not to be unreasonably withheld or delayed.
11.3 If any party fails to rely on its rights under an Agreement or otherwise, that shall not prevent it from relying on those (or similar) rights in the future.
11.4 The provisions of an Agreement, and the rights and remedies of the parties under it are cumulative and are without prejudice and in addition to any rights or remedies a party may have at law or in equity. No exercise by a party of any one right or remedy under the Agreement, or at law or in equity, shall (save to the extent, if any, provided expressly in the Agreement, or at law or in equity) operate so as to hinder or prevent the exercise by it of any other such right or remedy.
11.5 Nothing in an Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
11.6 If any provision of an Agreement is found by a court or other competent authority to be void or unenforceable:
11.6.1 that provision shall be deemed to be deleted from the Agreement and the remaining provisions of the Agreement shall continue in full force and effect; and
11.6.2 the parties shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for that provision.
11.7 Each Agreement (including the documents and instruments referred to in it) supersedes all prior representations, arrangements, understandings and agreements between the parties relating to its subject matter. Each party acknowledges that it has not relied on any representation, arrangement, understanding or agreement (whether written or oral) not expressly set out or referred to in the Agreement.
11.8 Any notice given under an Agreement shall be in writing and shall be delivered by email to the email address advised by each party to the other from time to time for this purpose, or sent by pre-paid registered post or airmail by a recognised mail carrier (return receipt requested) or in person to the address of the relevant party as set out at the head of the Agreement, or to such address as subsequently notified to the other party pursuant to this clause. In the case of email, the notice shall be deemed to have been delivered on acknowledgement by the recipient. In the case of post, the notice shall be deemed to effective one business day after the date on proof of delivery.
11.9 An Agreement is not intended to convey a benefit on any person not a party to it and accordingly the provisions of the Contracts (Rights of Third Parties) Act 1999 are excluded.
11.10 The Agreement shall be governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English Courts.