BACKGROUND:

These Terms and Conditions shall apply to the hiring of IMRSIV Ltd. (“the Production Company”) as a production company by customers wishing to acquire creative services such as video and photography for commercial purposes.

1.Definitions and Interpretation

1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

“the Agreement”

means the agreement entered into by the Customer and the Production Company incorporating these Terms and Conditions which shall govern the provision of the Production Company’s services;

“Business Day”

means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in London;

“Confidential Information”

means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);

“Customer”

means the customer who requires the Production Company’s services subject to these Terms and Conditions;

“Expenses”

means costs incurred by the Production Company in direct relation to the provision of his services;

“Licence”

means a exclusive, perpetual, non-transferrable, licence granted by the Production Company to the Customer to use the Selected Photographs or Video for commercial purposes within a Project under Clause 7;

“Order”

means the Customer’s initial request to acquire the services of the Production Company as set out in Clause 2 of these Terms and Conditions;

“Photograph or Video”

means any photograph or video taken by the Photographer or Videographer during the Shoot;

“Shoot”

means all stages of the the Production Company’s services provided to the Customer including preparation beforehand, the taking of Photographs or Video and the processing of Photographs or Video;

“Price”

means the fee payable for the Shoot itself which shall not extend to Selected Photographs or Video;

“Project”

means a particular use to which the Customer intends put the Selected Photographs;

“Rejection Fee”

means a sum agreed at the time of Ordering which shall be payable by the Customer in the event that the Customer chooses to reject the Photographs entirely;

“Royalty Fees”

means the fees payable on a per-Project basis for the licensed use of the Selected Photographs; and

“Selected Photographs or Video”

means the Photographs or Video chosen by the Customer from the proofs made available to them which shall be licensed under these Terms and Conditions.

1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:

– 1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;

– 1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

– 1.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;

– 1.2.4 a Clause or paragraph is a reference to a Clause of these Terms and Conditions.

– 1.2.5 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.

1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.

1.4 Words imparting the singular number shall include the plural and vice versa.

1.5 References to any gender shall include the other gender.

1.6 References to persons shall include corporations.

2. Orders

2.1 The Production Company accepts orders for Photo or Video Shoots through Telephone or Email.

2.2 When placing an Order the Customer shall set out the following information:

– 2.2.1 Location of Photo or Video Shoot

– 2.2.2 Date of Photo or Video Shoot

– 2.2.3 Type of Photo or Video Shoot

– 2.2.4 Duration of Photo or Video Shoot

– 2.2.5 Responsibility for obtaining clearances

2.3 The Production Company shall provide an order form to the Customer which shall provide prompts for all required information.

2.4 Once the Order is complete and submitted the Production Company shall prepare and submit a Quotation to the Customer either by email or first class post which shall set out the Deposit, the Price and any anticipated Expenses.  The Quotation shall not necessarily include all Expenses which may be incurred nor shall it include the licence fees which may be payable for Photographs.

2.5 The Customer shall be free to make changes to the Order and Quotation prior to acceptance.  The Customer may accept the Quotation by telephone, email or first class post.

3. Deposit

3.1 At the time of signing the Agreement or not more than 7 days thereafter the Customer shall be required to pay a Deposit to the Production Company.  The Deposit shall be set out in the Quotation.  Orders shall not be confirmed until the Deposit is paid in full.

3.2 Subject to the cancellation provisions set out in Clause 5, the Deposit shall be non-refundable.

4. Price and Payment

4.1 The Price for the Photo or Video Shoot shall be set out in the Quotation and detailed in the Agreement.

4.2 The Production Company shall invoice the Customer at the end of the Photo or Video Shoot for all items set out in the Quotation and the Agreement, further reasonable Expenses incurred during the Photo Shoot and the total fees payable for the Selected Photographs or Video.

4.3 Any and all invoices provided by the Production Company to the Customer under the Agreement must be paid in full within 28 days of receipt by the Customer.

4.4 Without prejudice to sub-Clause 11.3.1, any sums which remain unpaid following the expiry of the time period set out in sub-Clause 4.3 shall incur interest on a daily basis at 4% above the base rate of Barclays Bank from time to time until payment in full is made.

4.5 Where any sums remain unpaid following the expiry of the time period set out in sub-Clause 4.3 the Licence granted to the Customer under Clause 7 shall be suspended until payment is received in full by the Production Company.

5. Cancellation and Rescheduling

5.1 The Customer may cancel or reschedule the Photo or Video Shoot at any time prior to the start date of the Photo Shoot. The following shall apply to cancellation or rescheduling:

– 5.1.1 If the Customer cancels the Photo or Video Shoot more than 14 days ahead of the start date the Production Company shall issue a full refund of all sums paid, including the Deposit.

– 5.1.2 If the Customer reschedules the Photo or Video Shoot more than 7 days ahead of the start date the Production Company shall retain all sums paid, including the Deposit and shall deduct all such sums from any balance payable on the rescheduled Photo or Video Shoot.

– 5.1.3 If the Customer cancels the Photo or Video Shoot less than 30 days but more than 14 days ahead of the start date the Production Company shall refund any sums paid less the Deposit.

– 5.1.4 If the Customer reschedules the Photo or Video Shoot less than 30 days but more than 14 days ahead of the start date the Production Company shall retain any sums paid less the Deposit and shall deduct all such sums from any balance payable on the rescheduled Photo Shoot. A new Deposit shall be payable on the rescheduled Photo or Video Shoot.

– 5.1.5 If the Customer cancels the Photo or Video Shoot less than 14 days ahead of the start date the Production Company shall retain all sums paid and any outstanding sums shall become immediately payable.  No refund shall be issued.

– 5.1.6 If the Customer reschedules the Photo or Video Shoot less than 14 days ahead of the start date the Production Company shall retain all sums paid and any outstanding sums shall become immediately payable.  No refund shall be issued and no sums paid will count toward the fees and Deposit payable on the rescheduled Photo Shoot.

5.2 The Production Company may cancel the Photo or Video Shoot at any time prior to the start date and shall refund all sums paid, including the Deposit.

5.3 Where a refund is due it shall be paid by BACS within 14 days Business Days of the event triggering such refund.

6. Photography or Video

6.1 The Production Company shall specify the subject matter of the Photo or Video Shoot and shall, prior to the date of the Photo or Video Shoot, specify any particular Photographs, Videos or compositions they require.

6.2 Subject to any specific requirements set out by the Customer, the Production Company shall use his own exclusive judgement when selecting equipment and deciding upon artistic factors such as composition, lighting and photographic style.

6.3 Subject to the nature of the Photo or Video Shoot and the specific requirements of the Customer the Production Company will take as many Photographs or Footage as they deem appropriate with a view to giving the best choice when processing and preparing the final Photographs or Video for selection by the Customer.  The number of Photographs or Footage taken during the Photo or Video Shoot shall not affect the Price payable by the Customer.

6.4 Following processing and preparation of the Photographs or Video the Production Company will make proofs available to the Customer to enable the Customer to select the Photographs or Video they require.

6.5 The Production Company shall deliver the Selected Photographs or Video to the Customer in the format(s) agreed at the time of selection, subject to the terms of the Licence granted in Clause 7.

6.6 The Customer shall have a period of 14 days following the delivery of the Selected Photographs or Video to inform the Production Company of any discrepancies with their choices or significant flaws in the Selected Photographs or Video which were not visible in the proofs. The Production Company shall undertake any necessary remedial action which is possible upon being informed of any such problems.

6.7 Subject to the provisions of sub-Clause 6.6 there shall be no right to reject the Photographs or Video on the basis of style or composition unless a Rejection Fee has been agreed at the time of Ordering.

6.8 The Production Company shall be free to sub-contract any of his obligations under the Agreement provided that any and all sub-contractors are reasonably skilled in the relevant practices and provided that no additional charges are passed on to the Customer.

7. Copyright and Licensing

7.1 The Copyright in the Photographs or Video is and shall remain the property of the Production Company. Subject to a written agreement to the contrary nothing in these Terms and Conditions shall vest any ownership rights in the Customer.

7.2 All Licences shall become effective following delivery of the Selected Photographs or  Video to the Customer and, subject to the provisions of sub-Clauses 4.5 and 7.9, shall continue from that date for the duration of copyright protection (which shall be the life of the Production Company plus 70 years under Section 12 of the Copyright Designs and Patents Act 1988).

7.3 The Production Company must be shown on or in reasonable proximity to all reproductions of the Photographs or Video which are published by the Customer. The Production Company hereby asserts his statutory right to be identified under Sections 77-79 of the Copyright Designs and Patents Act 1988. the Production Company may subsequently waive this requirement at any time by giving written notice to the Customer.

7.4 All Licences shall be granted on a per-Project basis. The Customer shall pay Royalty Fees once per Project and shall not be required to pay recurring Royalty Fees for repeated use within the same Project.

7.5 The Customer shall be permitted to use the Selected Photographs or Video in any Project subject to the following limitations:

– 7.5.1 The Selected Photographs or Video may not be used for any purposes which are libellous, defamatory, pornographic, obscene or otherwise unlawful;

– 7.5.2 The Selected Photographs or Video may not be used to form any part of a logo, service mark, trademark or any other form of business or brand identity;

– 7.5.3 Where the Selected Photographs or Video are to be published on a website of any kind the Customer must take reasonable steps to limit the ease of copying and downloading the same.

7.6 The Licences shall apply only to the stated Selected Photographs, Videos and Projects and shall not extend to proofs or any other material provided by the Production Company to the Customer or any other Projects.

7.7 The Customer may not sub-license the Selected Photographs or Video without the prior written permission of the Production Company.

7.8 The Production Company reserves the right to use the Photographs or Video in any advertising or promotional material provided such material is only related to the Production Company or his services.

7.9 The Licences granted to the Customer shall be automatically revoked if the Customer breaches any of their terms.

8. Insurance, Liability and Indemnity

8.1 The Production Company shall have in place public liability insurance with a limit of indemnity of £10 million.

8.2 The Production Company shall have in place professional indemnity insurance with a limit of indemnity of £1 million.

8.3 Whilst the Production Company shall use all reasonable endeavours to ensure that all Photographs or Video delivered in a digital format are free from viruses and errors, provides no guarantee that the Photographs or Videos will be free from such defects and accepts no liability for any loss or damage which may result from the same.

8.4 The Production Company shall indemnify and hold harmless the Customer against any costs, liability, damages, loss, claims, threatened claims or proceedings brought by any third party arising out of any failure by the Production Company to obtain any clearances for which he was responsible in respect of third party copyright works, trademarks, designs or other intellectual property provided that:

– 8.4.1 It is agreed at the time of Ordering that the Production Company shall be responsible for obtaining such clearances.

– 8.4.2 The Production Company shall be given full control of any proceedings or negotiations in connection with any such claim or threatened claim;

– 8.4.3 The Customer shall at their own cost give the Production Company all reasonable assistance for the purpose of any such proceedings or negotiations;

– 8.4.4 Except pursuant to a final award, the Customer shall not pay or accept any such claim or threatened claim, or compromise any such proceedings or negotiations, without the consent of the Production Company, such consent not to be unreasonably withheld;

– 8.4.5 The Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which they may have in relation to any such claim or threatened claim, and the indemnity provided by the Production Company under this sub-Clause 8.4 shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);

– 8.4.6 The Production Company shall be entitled to, and the Customer shall accordingly account to the Production Company for, all damages and costs (if any) awarded against any other party or agreed by the Customer (which agreement shall not be unreasonably withheld) to be paid by any other party in respect of any such claim or threatened claim; and

– 8.4.7 The Production Company shall be entitled to require the Customer to take such steps as the Production Company may reasonably require to mitigate or reduce any loss of the Customer.

9. Confidentiality

9.1 Each Party undertakes that, except as provided by sub-Clause 9.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and for 1 year after its termination:

– 9.1.1 keep confidential all Confidential Information;

– 9.1.2 not disclose any Confidential Information to any other party;

– 9.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;

– 9.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and

– 9.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 9.1.1 to 9.1.4 above.

9.2 Either Party may:

– 9.2.1disclose any Confidential Information to:

– 9.2.1.1 any sub-contractor or supplier of that Party;

– 9.2.1.2 any governmental or other authority or regulatory body; or

– 9.2.1.3 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;

to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services), or as required by law.  In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 9.2.1.2 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of this Clause 9, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and

– 9.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information which is not public knowledge.

9.3 The provisions of this Clause 9 shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.

10. Force Majeure

10.1 No Party to the Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

10.2 In the event that a Party to the Agreement cannot perform their obligations thereunder as a result of force majeure for a continuous period of 30 days, the other Party may at its discretion terminate the Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all work completed up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of the Agreement.

11. Term and Termination

11.1 The Agreement shall come into force on an agreed commencement date and shall continue an agreed period from that date, subject to the provisions of this Clause 11.

11.2 In the event of cancellation under Clause 5 the Agreement shall immediately terminate.

11.3 Either Party may immediately terminate the Agreement by giving written notice to the other Party if:

– 11.3.1 any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 30 Business Days of the due date for payment;

– 11.3.2 the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 30 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;

– 11.3.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;

– 11.3.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);

– 11.3.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);

– 11.3.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;

– 11.3.7 that other Party ceases, or threatens to cease, to carry on business; or

– 11.3.8 control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement.  For the purposes of this Clause 11, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.

11.4 For the purposes of sub-Clause 11.3.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.

11.5 The rights to terminate the Agreement given by this Clause 11 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.

12. Effects of Termination

Upon the termination of the Agreement for any reason:

12.1 any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable;

12.2 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain In full force and effect;

12.3 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which existed at or before the date of termination; and

12.4 subject as provided in this Clause 12 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and

12.5 each Party shall (except to the extent referred to in Clause 9) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.

13. No Waiver

No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

14. Further Assurance

Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.

15. Costs

Subject to any provisions to the contrary each Party to the Agreement shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.

16. Set-Off

Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.

17. Assignment and Sub-Contracting

17.1 Subject to sub-Clause 17.2 The Agreement is personal to the Parties.  Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.

17.2 The Production Company shall be entitled to perform any of the obligations undertaken by him through any other member of his group or through suitably qualified and skilled sub-contractors.  Any act or omission of such other member or sub-contractor shall, for the purposes of the Agreement, be deemed to be an act or omission of the Production Company.

18. Time

18.1 The Parties agree that all times and dates referred to in the Agreement shall be of the essence of the Agreement.

19. Relationship of the Parties

Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.

20. Non-Solicitation

20.1 Neither Party shall, for the term of the Agreement and for a period of 1 year after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Agreement without the express written consent of that Party.

20.2 Neither Party shall, for the term of the Agreement and for a period of 1 year after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.

21. Third Party Rights

21.1 No part of the Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.

21.2 Subject to this Clause 21 the Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.

22. Notices

22.1 All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.

22.2 Notices shall be deemed to have been duly given:

– 22.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or

– 22.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or

– 22.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or

– 22.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.

In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

23. Entire Agreement

23.1 The Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.

23.2 Each Party acknowledges that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

24. Counterparts

The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.

25. Severance

In the event that one or more of the provisions of the Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement.  The remainder of the Agreement shall be valid and enforceable.

26. Dispute Resolution

26.1 The Parties shall attempt to resolve any dispute arising out of or relating to the Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.

26.2 If negotiations under sub-Clause 26.1 do not resolve the matter within 60 days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.

26.3 If the ADR procedure under sub-Clause 26.2 does not resolve the matter within 30 days of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.

26.4 The seat of the arbitration under sub-Clause 26.3 shall be England and Wales.  The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the Parties.  In the event that the Parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either Party may, upon giving written notice to the other Party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.

26.5 Nothing in this Clause 26 shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.

26.6 The decision and outcome of the final method of dispute resolution under this Clause 26 shall be final and binding on both Parties.

27. Law and Jurisdiction

27.1 These Terms and Conditions and the Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.

27.2 Subject to the provisions of Clause 26, any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or the Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.