TERMS AND CONDITIONS OF POST PRODUCTION
1. Definitions and Interpretation
1.1 In the Contract that you have signed you have by signing agreed to the following when the production process moves from production to post production:
“Charge” means the charges agreed between the parties for the provision of all post production facilities
“Company” means Kokoe Film Limited Ltd, whose principal place of business is:
40 . Old School Lane . Blakesley . Towcester . NN12 8RS
“Contract” means this agreement and any documents ancillary thereto.
“Customer” means the person, persons or company using the services of the Company or contracted by the company for its professional or other services (acting, crew, editing, directing, producing etc.) whether detailed in the original memo or as detailed in any contract made with the company without exception.
“Quotation” means the quotation addressed to the Customer including any amendment in writing or advice or email from the Company which shall lapse 30 days from the date of such unless accepted in writing by the Customer before the expiry of such 30 days or the use of post production facilities has commenced.
“Booking” means the booking period for which the Company has agreed to provide the Facilities for or to the Customer;
“Customer's Property” means any of the Customer's works, tapes, films,media or other materials, equipment or other property which is the subject of the Facilities and is provided to the Company;
“Facilities” means the pre/post-production equipment, personnel, creative and production facilities and services which the Company is providing to the Customer in accordance with these terms and conditions;
'Materials' means all tapes, memory cards, hard drives, films or other materials or property provided by the Company pursuant to a Booking.
"Production" means all processes or parts thereof or any process relevant to Production which the company considers is a process preceding Post Production.
These terms shall also apply fully to all processes or parts of "Production' meaning any or all parts relative to Principal Photography or procedures or methods or systems or processes that the company considers as relevant to Principal Photography and/or Production as the same as aforesaid.
2. Application of Terms and Conditions
2.1 All dealings between the Customer and the company will be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document and including any term implied by law, so far as is possible), trade, custom, practice or curse of dealing.
2.2 Rates, Fees and Charges
2.2.1 The rates charged by the Company or to be charged by the Company are those that are published from time to time on the Company’s rate card. All rates that do not include Value Added Tax unless;ess stated otherwise, all media stock, courier and delivery charges, meals and long distance telecommunications expenses and any other such VAT or external expenses shall be paid by the Customer within the time agreed or In full if requested on demand.
2.3 The Company reserves the right to change the rates quoted in the rate card at any time without prior notice.
3.1 Whilst all the time and prices estimates given by the Company are given in good faith and the Company will endeavour to adhere to such estimates, the Company will not be bound by such estimates where they are not met due to the Customer's changes or other circumstances outside the Company's control and the Company will not be liable for any failure to meet such estimates. The Company will not be responsible for any costs, charges or expenses incurred by the Customer as a result of such failure.
4.1 Unless the Customer has an approved credit account with the Company, all Charges must be paid prior to provision of any Facilities. Any Customer wishing to open a credit account with the Company must submit a completed credit account application form for consideration by the Company together with any documents requested by the Company. The Company may give credit entirely at its discretion and may refuse or withdraw credit without specifying any reason:
4.2 If the Company has approved the Customer’s credit account unless otherwise agreed in writing:-
4.2.1 Payment must be made within 30 days of the date of the invoice in full without deduction by way of set off, counterclaim or otherwise. The time for payment shall be of the essence. 4.2.2 If the Customer fails to make payment on the due date then, without prejudice to any other right or remedy the Company will be entitled to:-
i) charge the Customer interest on the amount unpaid at a rate of 4% per annum over Bank of England base rate from time to time or the rate specified in the Late Payment of Commercial Debt (Interest) Act 1988, as amended, whichever is the higher
ii) claim reasonable compensation for debt recovery costs as specified in the Late Payment of Commercial Debt Regulations 2002 (or any amendment thereof) on each invoice
iii) cancel the contract for the provision of Facilities with the Customer
iv) withdraw any credit facilities even if previously granted such that all sums invoiced to the Company are immediately payable
4.2.3 Payment to the Company shall not, in any circumstances, be dependant upon payment to the Customer from any third party. All payments to the company must only be made to the company without exception.
4.3 Any queries on the invoice must be raised within 14 days of the date of the invoice.
5.1 In its absolute discretion, The Company may at any time permit or make a cancellation on behalf of or direct with the Customer of a Booking or order and reserves the right to cancel any Booking or Order in the event of any breach in part or in full hereof of any of these terms and conditions by the Customer. A 'Breach' will also constitute any malicious communication or communications that the company finds unacceptable including the Customer acting outside of his Contract.
5.2 In the event of any such cancellation being permitted or instigated by the Company less than one full 24 hour working day before the start of the Booking, the Booking will be charged at the full rate under the Company's rate card current at the date of cancellation.
5.3 In the event of such cancellation being permitted or instigated by the Company between three and one full 24 hour working days before the start of the Booking, the Booking will be charged at 50% of the full rate under the Company's rate card current at the date of cancellation.
5.4 In addition to the above mentioned cancellation charges, the Company will be entitled to be reimbursed with any costs or expenses which it may have incurred with the knowledge and approval of the Customer or not.
6. Lien and Delivery
6.1 Until payment in cash or cleared funds of all monies due from the Customer to the Company pursuant to a particular Booking:-
6.1.1 the physical property in all Materials shall, notwithstanding delivery, remain vested in the Company including all right title and interest in those Materials and the subsequent right to dispose of them or sell them as the Company sees fit in order to recoup its losses or costs as a result of the Customer's actions;
6.1.2 The Company shall have a general lien over any property of the Customer in the Company's possession for such monies due:
6.1.3 The licence granted by the Company to the Customer pursuant to clause (8.2) shall not take effect and be voided.
6.2 Furthermore, such property shall not pass to the Customer until the Company has also received payment in cash or cleared funds of all monies due from the Customer to the Company under any other Bookings or business transaction.
6.3 The Customer hereby grants an irrevocable licence to the Company so that it may enter upon any premises where any material are stored or where they are reasonably thought to be stored, during normal business hours, and repossess the same.
6.4 If the Customer fails to make payment within 14 days of such monies becoming due, the Company at its discretion shall be entitled to exploit or dispose of such property and apply any proceeds towards the monies due and any expenses in respect of such exploitation or disposal and shall, upon accounting to the Customer for the balance (if any) remaining, be discharged from all liability in respect of any such property.
6.5 The Company will endeavour to deliver any Materials as soon as practicable after receipt of all sums due to the Company from the Customer but the Company shall not be responsible for any loss suffered by the Customer due to delay in delivery unless such loss shall have been caused by the gross negligence of the Company.
7.1 Risk of damage to or loss of the Materials shall pass to the Customer on delivery, or if the Customer fails to take delivery, when the Company tenders delivery.
7.2 The Customer acknowledges that it is not possible for the Company to obtain insurance against any lost costs of production arising from loss or damage to the Customer's property or Materials.
7.3 Accordingly, the Customer shall take out and maintain such insurance cover against all risks as is necessary or usual in connection with production (including pre/post production), including lost production costs caused on loss or damage to the Customer's property (and its content) whilst under the custody or control of the Company.
8. Intellectual Property in Materials
8.1 All Copyright in any original recordings or other works resulting from the provision of the Facilities and/or embodied in any materials shall be vested in, and be exclusive property of, the Company.
8.2 Subject to the Company having received payment in cash or cleared funds of all monies due from the Customer to the Company pursuant to a particular Booking, the Company grants the Customer an exclusive licence to publish and transmit the finished product of the provision of the Facilities as a whole in its final form as supplied by the Company for the purpose originally contemplated.
8.3 The Customer shall have no rights whatsoever (and undertakes not) to use any Material or intellectual property rights of any type whatsoever contained in them separately from the finished product of the provision of the Facilities as a whole or for any other purpose whatsoever.
8.4 Notwithstanding anything to the contrary contained herein, the Company shall retain ownership and possession of, and shall not be required to deliver to the Customer, any mechanical devices, workflows, processes, Company know how, source or object code, audio/visual workstation timelines or sessions, or application software which are used as tools during provision of the Facilities.
9. Confidential Information
9.1 The Customer shall take proper steps to keep confidential all confidential information relating to the Company or its business or financial affairs or the Facilities or other services provided by it, including any computer programs, production techniques, databases and any original ideas and concepts, know- how, workflows, designs and processes incorporated in or inherent in the Booking, which information is disclosed to or obtained by the Customer pursuant to or as a result of the provision of the Facilities (other than information in the public domain other than by reason of a breach by the Customer of this provision).
9.2 The Customer will not use or divulge any confidential information to any person (other than its professional advisers) and upon any termination, the Customer will return to the Company any confidential information (without retaining copies thereof) and any equipment or other elements including outstanding amounts, provided by the Company (other than, for the avoidance of doubt, the Materials and Monies).
10. The Company’s Liability
10.1 Save as otherwise expressly provided in these terms and conditions and to the fullest extent permitted by law:
10.1.1 The supply to any Customer of Materials and facilities are entirely at the Customer's risk and the Company shall be under no liability to the Customer or any other person for any direct, indirect or consequential loss or damage arising from any defect in the facilities and the materials or any equipment or tapes used in relation thereto;
10.1.2 If the use of the facilities for any Booking or Contract is delayed, postponed, curtailed or cancelled for any reason affecting the Company, then unless such delay, postponement, curtailment or cancellation shall have been caused by the gross negligence of the Company, the Company shall not be liable for any loss or damage suffered by the Customer by reason thereof;
10.1.3 The Company shall not in any event be liable for economic loss (including loss of profit or goodwill) or any indirect or consequential loss or damage;
10.1.4 All warranties, conditions, terms and representations relating to goods or services supplied by the Company (whether expressly or implied by statue, common law, use or otherwise) are hereby excluded. Nothing herein shall be construed as excluding or limiting (or seeking to do so) any liability on the part of the Company by reason of death or bodily injury caused by The Company's negligence.
10.2.1 Save as otherwise expressly provided in these terms and conditions and to the fullest extent permitted by law, the Company will not be responsible for any damage to or loss of any Customer's property or Materials held by the Company nor any loss (consequential or otherwise) arising in respect thereof, unless caused by the Company's negligence in which case paragraphs (10.2.2) and (10.2.3) shall apply;
10.2.2 In the event of loss or damage to the Customer's property or Materials caused by the Company's negligence during the Booking the Company's liability shall be limited to the cost expended by the Customer in fees and charges charged by the Company and shall not exceed £50,000 in respect of any one project.
10.2.3 If the Customer shall notify the Company prior to any Booking or Contract that the Materials are valued by the Customer at a stated sum which exceeds the figure stated in paragraph (10.2.2) and shall agree to reimburse the Company with the cost of effecting special insurance cover for the Materials during such Booking in the sum stated by the Customer in such notice, the limitation of liability shall be the sum stated by the Customer and the figure in paragraph (10.2.2) shall not apply.
10.2.4 Subject to the above provisions of this paragraph (10.2),all of the Customer's property and all Materials held by the Company will be held by the Company entirely at the risk of the Customer, irrespective of the cause of any loss or damage and the Customer should insure the Customer's Materials to their full value against all risks and take and retain copies of all Customer's Materials before providing them to the Company.
10.3 The Company shall make available its equipment and the personnel it deems necessary to operate such equipment but the Customer shall satisfy itself that the facilities are suitable for its purpose and while the Company will use its best endeavours to ensure that all equipment and facilities perform in accordance with the specification for such equipment and Facilities unless expressly agreed in writing at the time of the acceptance of the Booking or Contract, the Company shall not be responsible for ensuring that its equipment and the Facilities provided by it are suitable for the Customer's purpose.
10.4 The Company shall not be liable for any reduction in the quality of its services due to full or partial failure of any internet connection used to provide those services or of any internet connection used in the process of a Booking or employed in the use of Facilities by the Customer.
10.5 The Company shall not be liable for any reduction in the quality of its services that may be caused by the quality of the Customer's Materials or the Company's adherence to the Customer's instructions.
10.6 The Customer shall indemnify the Company, its directors, and employees, servants, sub-contractors and agents all liabilities, actions and losses, claim, proceedings, judgement, damages, obligations, costs and expenses of any nature what- so ever (including, but not limited to, legal fees, costs and expenses) arising directly or indirectly out of or in connection with the Customer's Materials or the acts or omissions of the Customer, its servants, agents or representatives, or any breach by the Customer of any of its representations, warranties other obligations in these or any other terms and conditions (including, but not limited to claims by any third party for breach of copyright or defamation relating to any Materials or Customer's property or any failure by the Customer to observe the provisions and requirements of any applicable agreements).
11. Non Collection
11.1 The Company shall be entitled to destroy, erase or otherwise dispose of as it thinks fit any Materials or Customer's property in its possession and uncollected by the Customer after the expiration of six months from the end of the Booking our termination of contract, and while uncollected by the Customer, such materials or Customer's property shall be held by the Company at the Customer's risk as stated above.
12. Transfer Of Obligations
12.1 The Company reserves the right to assign or sub-contract all or any part of its obligations to the Customer.
12.2 Any contract which is made between the Company and the Customer is personal to the Customer, who shall not assign or charge the benefit thereof without the express prior written consent of the Company.
13. Representation And Warranties
The Customer represents and warrants to the Company that:-
13.1 Before the commencement of the Booking or Contract it will obtain all consents licences and clearances required from the performers, copyright owners and any other person having any right or interest in connection with any of the Customer's Materials and that if the obtaining such clearance delays the project or booking or contract then the Company shall not be held liable for such a delay and
13.2 Nothing contained in the Customer's property will be defamatory, offensive, obscene or otherwise unlawful or in breach of any intellectual property or any other right of any third party.
13.3 The Customer will respect the Company's staff and executives at all times and agrees that no member of staff or executive management should feel required or feel obliged to deal with any Customer either face to face, over the phone or in correspondence who exhibits threatening, stress causing or anxiety causing or abusive or violent behaviour including texts or emails or phone calls that display acts of malicious communication. In any of these circumstances any member of staff or executive management has the right to refuse to operate the Booking with the customer or to offer or operate any services and shall not be required to supply their name or any further details. Any such malicious act (under The Malicious Communications Act 1988) whether considered proven or not will see the cancellation of all and any other services or elements or items or otherwise in all other term and conditions of the Company which will be withdrawn, cancelled and/or terminated unilaterally and without limit forthwith from the time of the malicious act.
13.4 Threatening behaviour is defined as but not limited to threats of violence to members of staff or executive management or any other person which is, for example; sexist, racist or homophobic; including intimidating language, swearing and/or aggressive body language or the involvement of threats against members or their families of companies or threats of postings made online.
13.5 In all circumstances involving an actual or potentially violent/threatening or abusive Customer, the Company will explain to the Customer that their behaviour is unacceptable and the Customer will be asked to apologise and/or behave in a civil manner or certain services or supplies or elements will be limited or withdrawn to limit behaviour from happening again. Subject to the customer’s behaviour improving sufficiently and where possible an apology is received, the customer may only be dealt with at the level and discretion that the Company considers and deems as fitting and communication will be limited and this shall include the amount of information given or the amount of information on reports or emails as on a 'need to know' basis and nothing more.
13.6 If the Company chooses to limit the Customer with regards communications or services or privileges it offers or has or has had with the Customer are withdrawn or limited then the Customer will lose those communications or services or privileges and access to certain information will be at the total discretion of the Company in order to protects its staff and executive management from further abuse.
14. Force Majeure
14.1 The Company shall not be under any liability to the Customer as a result of the Company being unable to perform any of its obligations or comply with any of the Customer's instructions due to circumstances beyond its reasonable control, including but not limited to, industrial action taken by any person or persons, and if the Company is so unable, it shall at its option either be entitled to perform such obligations or comply with such instructions as and when it is reasonably able to do so or to treat itself as wholly or partly released from all such obligations or instructions liability.
15. Termination By The Company
15.1 Either party shall be entitled to immediately terminate the Contract on giving written notice to the other if:
15.1.1 That other party commits any material breach of these conditions and, in the case of such a breach which is capable of remedy, fails to remedy the same within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied (for the avoidance of doubt this includes any late payment or failure to pay by the Customer any sums due to the Company shall be a material breach); or
15.1.2 That any party makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or partnership) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or
15.1.3 An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of that other party; or
15.1.4 That other party ceases, or threatens to cease, to carry on business.
15.2 On termination the Customer shall pay to the Company all costs and expenses and all other costs including time-based costs and fees at the standard hourly rate due under the Booking or Contract whether or not the Customer feels they are due or not or whether in the opinion they are due or unsatisfactory or not or otherwise.
15.3 Neither party shall have any right to claim for any loss or damage occasioned after such termination, which shall be without prejudice to any accrued rights and remedies of either party.
Any notice to be given in accordance with the Contract (or any other agreement considered as covered by Contract) shall be deemed to be properly given if delivered by hand or sent by prepaid post or email or facsimile to the party concerned at the address or email address or facsimile number as set out on the Quotation or to such other address, email or facsimile number as may be communicated from time to time in writing to the sender of the notice. Notices sent by prepaid post shall be deemed to have been received three working days after the date of posting. Notices delivered by hand shall be deemed to have been delivered upon receipt. Notices sent by email or facsimile shall be deemed to have been received if sent before 4pm on any working day on that day and if sent after 4pm on any working day on the first working day following the date of sending as the case may be and in both cases provided the sender has retained a successful transmission receipt.
17. Proper Law
This Contract shall be governed and construed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
18.1 No variation to the Contract will be binding unless agreed in writing between the Company and the Customer.
18.2 This Contract is the entire agreement between the parties and supersedes any previous agreement in relation to its subject matter. The Customer acknowledges and agrees that in entering into this Contract it does not rely on and shall have no remedy in respect of any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Contract or not) other than as expressly set out in the Contract and its only remedy for breach of this Contract shall be for breach of contract under the terms of this Contract.
18.3 The Company shall not be liable for any delay in performing or any failure to perform any of its obligations under this Contract caused directly or indirectly by any event beyond its reasonable control.
18.4 Neither party shall without the prior written consent of the other party assign, transfer, charge or deal in any other manner with this Contract or its rights under it or part of it, or purport to do any of the same, nor sub-contract any or all of its obligations under this Contract.
18.5 If any part of the Contract becomes invalid, illegal or unenforceable it shall be severed from the Contract and the remainder of the Contract shall remain in full force and effect.
18.6 A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that act.