1. Interpretation
The following definitions and rules of interpretation apply in these Terms.
1.1 Definitions:
Acceptance Date: the date on which the Client notifies the Producer in accordance with clause 5 that it has received and accepts as satisfactory and final the Products and all other Delivery Materials.
Proposal Document: the document provided to the Client setting out Bigtank’s proposal.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 8.30 am to 5.00 pm on any Business Day.
Client: the client to whom the Producer is providing the Services.
Contract: the contract formed after the acceptance of the Client’s order in response to the Producer’s proposal or quote which incorporates these Terms to the exclusion of any other terms or conditions.
Delivery Date: the delivery date to be agreed between the parties, which may be extended from time to time.
Delivery Materials: the materials listed in the Proposal Document.
Fixed Fee: the fee which is agreed with the Client for the Delivery Materials and Products.
Force Majeure Event: means any circumstance not with a party’s reasonable control including, without limitation: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, or war; nuclear, chemical or biological contamination or sonic boom; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts; non-performance by suppliers or subcontractors; and interruption or failure of utility service.
Key Personnel: those persons listed in the Proposal Document who will provide services for the production of the Video, including presenters or actors appearing in or providing voice-over contributions to the Video, the director, individual producer, lead photographer or Camera Operator, and Post-Production Team.
Producer: Bigtank Productions Limited, Suite 2 Havana House, Cuba Industrial Estate, Stubbins, Ramsbottom, Bury BL0 0NE.
Production Schedule: the agreed dates, times and locations for the preparation, production and post-production of the Video during the Term, as set out in the Proposal Document.
Products: the final completed Video files.
Project Files: the production tools/edit files used by Bigtank to produce the Products which include the elements and assets collected and assembled prior to export.
Rushes: the unedited footage.
Services: the services to be provided by the Producer under the Contract as set out in clause 2.
Term: the period from the date of the formation of the Contract until the Acceptance Date or (if earlier) termination of the Contract.
1.2 A reference to writing or written includes email.
1.3 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 preceding those terms.
2. Engagement
In consideration of payment to the Producer of the Fixed Fee, the Client engages the Producer, and the Producer agrees, to produce the Video using the Key Personnel and in accordance with the Proposal 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) creating and developing a storyboard for the Video in full discussion with the Client and in accordance with the directions and request of the Client;
(b) consulting with and assisting in the writing of any script for narration and/or on-screen text in the Video;
(c) casting voice artists in consultation with the Client;
(d) selecting, gathering, holding and developing in consultation with the Client material that is to be contributed to the Video by third parties;
(e) 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;
(f) obtaining a licence to use or preparing suitable background library music;
(g) creating and producing the Video in a timely fashion in accordance with the Production Schedule;
(h) undertaking and overseeing all post-production titling, editing, scoring, dubbing, cutting and completion of the Video; and
(i) delivering to the Client the Delivery Materials on or before the Delivery Date.
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 provided that 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, provided that all suggestions made are within the existing brief and achievable within the agreed budget.
3.2 The Client shall appoint a representative (Client Representative) who shall have the right on behalf of the Company 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 changes 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 agreed Delivery Date 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, which will then form part of the Delivery Materials.
3.4 If the Client declines to accept any of the Delivery Materials, the Producer will then have 14 days in which to make all necessary changes to them, in consultation with the Client, the Client having given written reasons for non-acceptance. The Producer will then submit to the Client the revised material or replaced materials and the provisions of clause 3 and this clause 3.4 will apply again save that any further request for amendment by the Client after the second review shall be subject to charge by the Producer to cover reasonable costs necessarily incurred as a result of the second non-acceptance, such costs to be paid within 28 days of the Client’s receipt of a valid invoice for them.
3.5 The Client’s Representative shall have the opportunity to accept, or refuse to accept, the Video at rough cut and fine cut stage posted online for online review at the Producer’s cost. Subject to dates being agreed in advance, the Client shall be entitled to request within a period of five Business Days from receipt of each of the rough cut and fine cut respectively, reasonable amendments which shall be undertaken by the Producer at its own cost. If the Client does not request amendments within five Business Days, acceptance shall be deemed to have occurred and the Video accepted.
4. Obligations
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;
(d) be responsible for arranging and supervising the performance of the Services and delivery of the Delivery Materials; and
(e) maintain throughout the Term a policy of public liability insurance providing not less than two million pounds level of cover in respect of any act or omission of the Producer.
4.2 The Client agrees that it shall:
(a) provide the Producer with reasonable access to its premises or the agreed locations at no expense to the Producer inclusive of the cost of space, heat, light, power providing that the Producer shall, and shall procure that all its employees and contractors shall, enter into the Client’s standard conditions for such access if so required; and
(b) inform all employees, agents and guests at its premises of the proposed filming and obtain relevant and sufficient release forms duly signed by all such persons (unless Bigtank has been specifically contracted and paid to make such arrangements on behalf of the Client as an additional service on the Client’s behalf);
(c) 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
(d) 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 to the due performance by the Producer of its material obligations under these Terms, the Client shall as inclusive remuneration and as full and complete consideration for the Services and all rights granted to the Client under these Terms, pay to the Producer the Fixed Fee payable as follows:
(a) 40% on signature of the Contract;
(b) 30% on completion of filming or if an animation, on approval of storyboards; and
(c) 30% on the Acceptance Date.
5.2 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.
6. Intellectual property rights
6.1 Upon payment in full, but subject to clauses 7.4 and 7.5, the Producer shall assign to the Client absolutely with full title guarantee all intellectual property rights in the Products throughout the world in all existing and future media including all renewals, revivals, reversions and extensions and all associated rental and lending rights. For the avoidance of doubt, the assign of Intellectual Property shall be for the Products only, and not in respect of physical copies of Rushes or the Project Files. In addition, the music is only to be used with the Products under license from the relevant library.
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 (save that music must not be used by the Client on any of its other projects as Bigtank only have permission for the music’s use for an individual project) and 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 inclusive of the Copyright, Designs and Patents Act and any similar successor provision of law) 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 persons engaged or employed by the Producer and who contribute to the Video and to whom such rights may accrue.
6.3 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, such as by including them on Delivery Materials, 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 4. The Client warrants that no such use shall infringe the rights of any third party.
6.4 The Producer shall have the non-exclusive right 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.
6.5 The Producer shall own and retain the rights to the Project Files. The Project Files will never be available to the Client or any other third party. The Rushes may also be retained by the Producer. However, the Rushes may be purchased by the Client in addition to the Products as an up-sell service upon request.
6.6 In the event that the Client does not pay for the Delivery Materials in full in accordance with clause 5, the Client shall not be assigned any Intellectual Property Rights in them and such rights shall be retained and vest in the Producer.
7. Warranties
7.1 The Producer warrants, represents and undertakes to the Client that:
(a) the Producer is fully entitled to enter into and to perform the Contract in accordance with these Terms;
(b) the Video (save to the extent that it incorporates material made available to the Producer by the Client or includes some content which follows the general style or method of the Producer) 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 shall not make any commercial exploitation of any of the Products except as permitted under these Terms; and
(e) 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. The Producer’s liability in respect of this indemnity shall be limited to the sum of the Fixed Fee.
7.2 In order to receive the indemnification under clause 7.1(e) 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 a claim without the Producer’s prior written consent, not to be unreasonably withheld or delayed.
7.3 The Client warrants, represents and undertakes to the Producer that:
(a) it is fully entitled to enter into and perform the Contract in accordance with these Terms;
(b) it shall either own, or have obtained and paid for licences to use, all rights in all materials provided to the Producer by the Client in connection with the production of the Video (including without limitation the Products) and that no further liability will arise from the Client’s use of the Video; and
7.4 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 of the warranties, representations, undertakings or obligations on the Client’s part contained in these Terms.
7.5 In order to receive the indemnification under clause 4, 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.
7.6 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 these Terms.
8. Confidentiality
The Producer shall not, without the 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).
9. 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, social media, promotional and press activities undertaken shall be subject to the Client’s approval (such approval not to be unreasonably withheld or delayed). Such promotion may include the Producer stating that it produced the Products either in person, by making verbal/live presentations, through social media or in printed press.
10. Termination
10.1 The Client may terminate the Contract on two weeks’ written notice.
10.2 On termination under clause 1, the Producer shall be entitled to:
(a) receive payment of all sums that the Producer is, up to the date of termination, contractually obligated to pay third parties;
(b) retain the payment which has already been made under clause 5.2(a); and
(c) receive part of the next payment due, to be paid on a pro rata basis for Services rendered up to the date of termination. The pro rata amount shall be calculated according to the following formula:
Number of Business Days on which the Producer has provided Services since the most recent scheduled payment date preceding termination
divided by
Total number of Business Days between the payment date preceding termination and the next scheduled payment date.
multiplied by
amount of next scheduled payment.
10.3 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any undisputed amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms;
(d) 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(e) 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;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party;
(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;
(h) the holder of a qualifying floating charge over the assets of that other party 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) 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;
(k) 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 1.1(c) to clause 1.1(i) inclusive;
(l) the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
(m) any Force Majeure Event prevents the other party from performing its obligations under the Contract for any continuous period of 2 months.
10.4 On termination of the Contract for any reason:
(a) neither party shall have any further obligation to the other under the Contract except as otherwise stated; and
(b) the rights, remedies or obligations of the parties that have accrued or become due before termination shall remain unaffected.
11. Data protection
11.1 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 and the UK General Data Protection Regulation as defined in the Data Protection Act 2018. This clause is in addition to, and does not reduce, remove or replace, a party’s obligations arising from such requirements.
11.2 The Producer will collect and process the personal data of all individuals featured in the Video in accordance with the privacy policy available from the Bigtank website https://bigtank.co.uk/privacy-policy/. The Client shall procure that each individual involved is aware of and reads Bigtank’s privacy policy and that each individual gives his/her consent.
12. Assignment and other dealings
Neither party shall, without the prior written consent of the other, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under these Terms.
13. Third-party rights
13.1 Unless it expressly states otherwise, these Terms do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these Terms.
13.2 The rights of the parties to rescind or vary these Terms are not subject to the consent of any other person.
14. No partnership or agency
14.1 Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party.
14.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
15. Waiver
15.1 A waiver of any right or remedy is only effective if given in writing.
15.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
16. Variation
No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17. Further assurance
The Producer shall execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to these Terms, 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 obligations under this clause.
18. Notices
18.1 Any notice given to a party under or in connection with these Terms or the Contract 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 email addresses notified to the other party at the time of entering the Contract (or an address substituted in writing by the party to be served):
18.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, 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 9.00 am on the second Business Day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
18.3 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.
19. Entire agreement
19.1 These Terms constitutes the entire agreement between the parties.
19.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
20. Remedies
20.1 The parties acknowledge that in the event of any breach of any of these Terms will result in irreparable and continuing damage to the other party for which there will be no adequate remedy at law, and the affected party shall be entitled to equitable relief including an injunction or specific performance, and such other relief as may be proper (including monetary damages if appropriate).
20.2 No failure or delay by either party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall 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 shall preclude or restrict the further exercise of that or any other right or remedy.
21. Anti-bribery
21.1 Both parties shall:
(a) comply with all applicable laws, statutes, and regulations 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 duration of the Contract their own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and the Relevant Policies, and will comply with them where appropriate; and
(e) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of the
21.2 Breach of this clause 21 shall be deemed a material breach of these Terms.
22. Jurisdiction
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 these Terms or their subject matter or formation.
23. Governing law
The Contract, these Terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
