Terms & Conditions
Michael Shaw Media (MSM) whose registered office is at 28 Dinsdale Gardens, EN5 1HE, UK, provides video content and production and strategic and activation services for branded video content.
These Terms & Conditions govern the supply of the Services to the Client identified in the Statement of Work.
1. Definitions and Interpretation
1.1 The following definitions and rules of interpretation apply in the Agreement, as well as those terms defined in the Statement of Work.
Acceptance Date: the date on which the Client notifies MSM in accordance with the terms of the Agreement that it accepts, as satisfactory, the Deliverables.
Agreement: the video production agreement between MSM and the Client for the supply of the Services by MSM to the Client, made in accordance with clause 2.1 and incorporating the Statement of Work and these Terms.
Applications: the application(s) for the Video and/or the Deliverables (if applicable), detailed in the Statement of Work.
Archive Fee: shall be the fee set out in the Statement of Work in respect of archive services for the final Video and Edit Files.
Brief: the completed video brief, that is attached to the Statement of Work.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Client: the client identified in the Statement of Work.
Client Representative: shall be as defined in clause 5.2.
Confidential Information: proprietary information or information of commercial value, in whatever form or medium, which has been kept confidential by the party from whom the information originates, including information relating to the party’s business operations, strategies, pricing, marketing and information relating to the methodologies used to create the Deliverables or any of their constituent parts, commercial or technical know-how, any and all of the foregoing information pertaining to either party’s clients and suppliers.
Costs: the costs and expenses, including any Third-Party Materials costs (if known) detailed in the Statement of Work.
Deliverables: any deliverables described in the Statement of Work, including the Video but excluding the Edit Files.
Edit Files: the files which are created by MSM after the rushes phase and before the final production of the Video, which can show or from which can be deduced the highly skilled editing processes and methodologies used by MSM to create the Video.
Input Materials: all Client acceptances or approvals, scripts, footage, documents, branding images and materials, images and materials, performances and services to be provided by the Client, or on its behalf (including by talent, contributors, consultants or freelancers procured by the Client) to MSM relating to the Services and Deliverables, as specified in the Statement of Work or as otherwise agreed by the parties from time to time, including the Client’s name and any Client branding provided by the Client to MSM.
Intellectual Property Rights: all copyright, neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, format rights, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Key Creative Parameters: those key creative parameters for the Video, set out in the Statement of Work.
Key Personnel: those persons listed in the Statement of Work who will provide the services for the production of the Video, which may include presenters or actors appearing in or providing voice-over contributions to the Video, the director, individual producer, lead photographer or cameraman, and editor.
Payment Schedule: the schedule of payments set out in the Statement of Work.
Pre-Production Pack: the pack of materials prepared by MSM and delivered or presented by MSM to the Client before the Shoot Date which details amongst others, the cast members, location(s), props, costumes, scripts and a detailed breakdown of the Services for the Shoot Date.
Pre-Production Meeting: the meeting where the Pre-Production Pack is presented or made available to the Client or a representative of the Client.
Production Schedule: the agreed dates, times and locations for the preparation, production and post-production of the Video during the Term, as attached to the Statement of Work.
Response to Brief: any response to the Brief prepared by MSM and attached to the Statement of Work.
Services: the work to be provided by MSM as described in the Statement of Work, which includes the creation of the Deliverables.
Shoot Date: the date specified for such in the Production Schedule.
Statement of Work: the statement of work provided by MSM to the Client, once signed by an authorised representative of the Client and MSM, which includes the Brief, the Response to Brief, the Production Schedule and the Costs.
Term: the period from the date of the Agreement until the Acceptance Date or (if earlier) termination of the Agreement.
Terms: these terms & conditions.
Third Party Materials: those materials identified as such in the Statement of Work, which are owned or licensed by a third party and used in connection with the Deliverables.
Video: the video to be produced by MSM as provided for in the Statement of Work including all rushes (being the entire footage from any Shoot Date).
1.2 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. BASIS OF AGREEMENT
2.1 Once a quote is agreed, it shall be incorporated into a Statement of Work which shall be signed by both parties. Once a Statement of Work is signed by both the Client and MSM, this creates a legally binding Agreement between the Client and MSM.
2.2 For the avoidance of doubt, these Terms shall apply to and be incorporated into the Agreement.
2.3 These Terms shall prevail over and take the place of any other terms or conditions stipulated, endorsed upon, delivered with, incorporated, referred to or contained in any document of or communication from the Client, including a purchase order from the Client or which are implied by trade, custom or course of dealing.
2.4 If there are any conflicts or inconsistencies between these Terms and the Statement of Work, the terms of the Statement of Work shall apply.
3. COMMENCEMENT AND DURATION
Provided the Client is able to return the signed Statement of Work by the date specified in the Statement of Work, the Services shall be provided by MSM from the date specified in the Production Schedule and shall continue for the Term.
In consideration of payment to MSM of the Costs, MSM shall provide the Services, including production of the Deliverables, using the Key Personnel (to the extent MSM can reasonably make them available) and in accordance with the terms of the Statement of Work.
5. CREATIVE CONTROL AND PRODUCTION PROCESS
5.1 The parties agree to meet from time to time as agreed between the parties to consult in good faith with each other over the editorial content and artistic direction of the Video. The Video will be created in accordance with the Statement of Work, including the Key Creative Parameters, provided that the Client shall, in its absolute discretion but with full discussion with MSM and giving good faith consideration to MSM’s views as a professional and experienced production company, have final editorial and artistic control over the Video.
5.2 At various stages, as are outlined in the Statement of Work, the scripts, voices, storyboards, design and music (as applicable) for the Video will be submitted to the Client for acceptance. The Client shall appoint a representative (Client Representative) who shall be authorised, on behalf of the Client, to provide its input, including acceptance required, in respect of such materials. The Client Representative shall include feedback from all key stakeholders within the Client at each stage of acceptance detailed in this clause 5including any key stakeholders named in the SOW. The Client Representative shall ensure that all feedback in respect of the materials shall be iterative, and in particular the feedback in the second, third or final round of amendments referred to in clause 3shall not include new feedback or changes which have not been included in earlier feedback iterations. The Client shall not without good cause reject any of elements delivered by MSM for acceptance. The Client shall act promptly and in good faith when considering the elements delivered for acceptance.
5.3 The Client agrees that following submission of each material in accordance with clause 2, it shall promptly communicate its acceptance (or otherwise) of such material to MSM. If the Client is not satisfied with any such materials it shall notify MSM within the timelines set out in the Production Schedule, providing reasonable and appropriate comments or requesting changes, in accordance with the scope of work set out in the Statement of Work and the Key Creative Parameters. The Costs include up to three rounds of amends plus one round for acceptance, all in line with the Brief and the Key Creative Parameters set out in the Statement of Work. MSM will work in line with the Production Schedule to make all necessary changes, in consultation with the Client. MSM will then re-submit to the Client the revised materials or replaced materials and the provisions of this clause 5.3 will apply again, until the Client has reached the maximum amount of amendments it is entitled to under this clause 5.3 or it has accepted the materials. If MSM does not receive notice of acceptance or otherwise within the period provided for in the Production Schedule, the Client will be deemed to have accepted such material. Notwithstanding the above, MSM shall provide the Pre-Production Pack to the Client at the Pre-Production Meeting before the Shoot Date. Provided the Deliverables materially comply with the Pre-Production Pack, the Client shall not be able to reject the Deliverables.
5.4 The Client shall be responsible for any additional costs reasonable incurred by MSM arising from: (i) any requests to make any amendments in addition to those provided for in clause 3; (ii) work that falls outside the scope of the Statement of Work: (iii) changes to already accepted materials, work and/or changes to Deliverables which materially comply with the Pre-Production Pack and/or changes which were not communicated in the Pre-Production Meeting; (iv) any costs arising from its delay in acting in accordance with the Production Schedule; and (v) any increases in Costs necessitated as a result of the Client’s requests; (vi) the Client failing to comply with the Client obligations set out in clause 6.2; and (vii) changes or feedback at the approvals stages in clause 5.3 which are not iterative as per clause 5.2. MSM shall advise the Client that additional costs are likely to be incurred, so far as possible, before they are incurred. Notwithstanding this, MSM shall raise an invoice for such costs at any time, and the Client shall be responsible for payment of the invoice within 30 days of receipt.
5.5 In the event of delay in the provision of the Input Materials and/or failure of the Client to comply with its obligations under clause 6.2, MSM shall, without limitation to its other rights and remedies under this Agreement be entitled to delay the performance of the Services by a reasonable period.
5.6 The Client Representative shall also have the opportunity to accept, or refuse to accept, the Video at rough-cut and final cut stage if the Video fails to materially comply with the Pre-Production Pack. The Video shall be supplied on hard drive or uploaded onto a server for online review at MSM’s cost. Subject to dates being agreed in advance, the Client shall be entitled to request within the Production Schedule, reasonable amendments to ensure the Video is in line with the Statement of Work and the Pre-Production Pack, which shall be undertaken by MSM at its own cost. If the Client does not request amendments within 10 Business Days of the making available of the Video to the Client, acceptance of the Video shall be deemed granted, and the Client shall not be entitled to reject or dispute any proper invoice issued in respect of the Costs of the Video.
6.1 MSM agrees that:
6.1.1 the Services shall be performed by a sufficient number of competent persons with the appropriate skills, qualifications and experience as is necessary for the proper performance of the Services;
6.1.2 it shall perform the Services in 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;
6.1.3 it shall maintain throughout the Term: (a) policy of public liability insurance with £5 Million pounds cover per claim, or series of related claims; and (b) professional indemnity insurance with £10 Million pounds cover per claim or series of related claims; and
6.1.4 for the avoidance of doubt, it shall be responsible for the payment of all Third Party Materials and goods and services commissioned by MSM to perform the Services, as noted in the Statement of Work, and the Client shall have no liability in respect of such costs, other than to pay the Costs in accordance with clause 7.
6.2 The Client agrees that:
6.2.1 it shall provide its acceptance of the Deliverables and the Services promptly and reasonably as detailed in clause 5 and the Production Schedule;
6.2.2 it shall provide the Input Materials in accordance with the SOW and Production Schedule at no cost to MSM, and that the Input Materials shall be comprehensive, up to date and suitable for the purpose;
6.2.3 it shall provide access to premises and facilities so far as this is reasonably necessary and provided that MSM shall, and shall procure that all its employees and contractors shall, comply with any health and safety policies in place at the Client’s premises;
6.2.4 where necessary and agreed, the Client’s shall provide such personnel and instruct such personnel to assist and support MSM wherever possible and comply with MSM's reasonable requests in making the Video, and in particular to provide such information as MSM may request to perform the Services;
6.2.5 it shall procure that the Client Representative shall be available to provide hands-on assistance during filming.
7. FEES AND PAYMENT
7.1 The Client shall pay MSM the Costs plus, VAT in accordance with the payment terms set out in the Statement of Work.
7.2 Subject to postponement of the Services or termination of the Agreement in accordance with clause 16.2, the Client acknowledges that should it be delayed or have failed to comply with its obligations in accordance with the Production Schedule (such as late delivery of the Input Materials, such delay shall not have the effect of delaying or pushing out the payment of the last instalment of any Costs, which shall be paid, in any event in accordance with the Production Schedule, except in the event of any delays caused by MSM.
7.3 MSM will at the Client’s reasonable request give the Client details of its spending of the Costs up to the date of such request.
7.4 Unless otherwise agreed, any overspend on the Costs shall be met by MSM, except to the extent that it arises from changes to the Services requested by the Client, or as a result of acts or omissions of the Client that are inconsistent with its obligations under the Agreement.
7.5 Invoices will be generated in accordance with the payment terms set out in the Statement of Work. The Client shall pay each validly issued invoice submitted to it by MSM, in pounds sterling in full within 30 days of receipt to a bank account nominated in writing by MSM.
7.6 The Client acknowledges that if it does require MSM to procure the purchase of Third Party Materials, certain third parties require payment in advance for the use of their Third-Party Materials or their services. In such an event, MSM is entitled to render an invoice in advance of commencement or completion of the Services and the Client shall pay the same on the payment terms stated in such invoice.
7.7 If the Client disputes any invoice in good faith, it must notify MSM within 7 days of receipt of that invoice, at which time the Client will be entitled to withhold payment of the disputed amount pending resolution of the dispute but will pay the undisputed amount in accordance with the terms of clause 7.The provisions of clause 8 shall not apply to any disputed amounts except, if the dispute is finally resolved in MSM favour, in which case, clause 7.8 shall apply as from the original due date for payment.
7.8 Without prejudice to any other right or remedy that it may have, if the Client fails to pay MSM on the due date the Client shall pay interest on the overdue amount at the rate of 10% per annum above Lloyds Bank PLC’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 and MSM may suspend all Services being provided under the Agreement until payment has been made in full.
7.9 The Client acknowledges that the assignment in clause 9 is only effective once all Costs due under the relevant Statement of Work have been received in cleared funds by MSM.
7.10 Time for payment shall be of the essence of the Agreement.
7.11 The Client shall have no rights of set-off, counterclaim, deduction or any other right to withhold payment due under an invoice for any reason.
The Client authorises MSM to insert, or procure the insertion of, a credit as the producer of the Video on the end credits of the Video, with its name and web address printed on all hard copies of the Video and included alongside all online versions of the Video. Provided that the Client has notified all third parties of its credit obligation to MSM under the Agreement, no inadvertent failure by the Client or by any such third party to accord MSM such credit will constitute a breach of the Agreement by the Client, provided further that it uses its reasonable efforts to remedy such failure where practicable.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Subject to payment in full of all monies due to MSM by the Client in accordance with the Agreement and the Client’s compliance with the terms of the Agreement, and save as provided for in clauses 2and9.3.2, MSM shall assign, by way of present and future assignment with full title guarantee to the Client all Intellectual Property Rights in the Deliverables excluding any Input Materials and the Edit Files for use in the Applications.
9.2 The Client acknowledges that the Edit Files reflect the know-how, methodology and intellectual capital that MSM has developed or acquired prior to performing the Services. As a result, the Intellectual Property Rights in the Edit Files are to be retained by MSM, subject to clause 2.2. If the Client wishes to acquire an assignment of all Intellectual Property Rights in the Edit Files, such acquisition shall be subject to payment of a fee and separate terms to be agreed by the parties.
9.3 Where a third party has rights in any Deliverables, such as in Third Party Materials, MSM shall notify the Client in writing:
9.3.1 whether an assignment to the Client of the relevant proposed Third-Party Materials can be obtained and the cost of obtaining it; and
9.3.2 if an assignment of the relevant proposed Third-Party Materials cannot be obtained or the Client does not agree to the proposed cost of an assignment, the cost of obtaining a licence of such materials for the Client’s use of the Video in connection with the Applications noted in the Statement of Work.
9.4 Following MSM notice, pursuant to clause 2, the Client shall notify MSM in writing whether MSM is required to obtain an assignment (if available) or whether the Client wishes to be granted a licence directly from that particular third party. If MSM is to obtain an assignment the provisions of clause 9 apply. If the Client wishes to be granted a licence directly from that third party, then MSM will assist the Client in obtaining such licence directly from that particular third party. The Client shall be responsible for paying the costs of such assignment or licence, and any legal costs reasonably required to secure such rights, as appropriate.
9.5 MSM hereby waives the benefits of any provision of law relating to so-called “moral rights” (including without limitation any rights of MSM under section 77 to section 85 inclusive of the Copyright Designs and Patents Act 1988) and any similar laws of any jurisdiction in relation to the Deliverables. MSM 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 MSM and who contribute to the Video and to whom such rights may accrue.
9.6 The Client shall own or be entitled to grant MSM the right to use the Intellectual Property Rights in the Input Materials. The Client hereby grants MSM a non-exclusive, worldwide, irrevocable, royalty free licence to copy, amend, publish, distribute and use the Input Materials solely to the extent necessary for the purpose of providing the Services. The Client warrants and undertakes that use by MSM in accordance with the terms of the Agreement shall not infringe the Intellectual Property Rights or any other rights of any third party.
10. COMPLIANCE WITH LAWS
In performing its services under the Agreement, MSM shall comply with all applicable UK laws, regulations and directives from time to time in force. For the avoidance of doubt, MSM is not responsible however, for ensuring that the content of the Deliverables which is provided in accordance with specific requirements under the Brief or requirements of the Client, complies with all applicable laws, regulations and codes, unless this is expressly stated in the Statement of Work.
11.1 Each party warrants and undertakes to the other that:
11.1.1 it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform its obligations under the Agreement and that those signing a Statement of Work are duly authorised to bind the party for whom they sign; and
11.1.2 it will hold all personal data acquired under the Agreement in accordance with its obligations under any applicable data protection legislation.
11.2 MSM hereby warrants and undertakes to the Client that:
11.2.1 the Deliverables (save for the Input Materials) will not infringe the Intellectual Property Rights or any other rights of any third party;
11.2.2 the Deliverables (save for the Input Materials) will not contain any defamatory matter; and
11.2.3 MSM shall not make any commercial exploitation of the Edit Files, save it shall be entitled to use the Edit Files as part of its show reel.
11.3 The Client hereby warrants and undertakes to MSM that:
11.3. 1 use by MSM of the Input Materials in accordance with the Agreement will not infringe the Intellectual Property Rights of any third party, nor any other rights of any third party;
11.3.2 the Input Materials will not contain any defamatory matter and all statements made by the Client or at its direction which are included in the Deliverables are accurate and true;
11.3.3 it shall comply with the terms of any licence to use the Third-Party Materials (if applicable); and
11.3.4 it shall obtain all relevant release forms, consents, licences and waivers duly signed by any employees, agents and guests at the Client’s premises that appear in the Video, for their contribution to be included in the Video and exploited as envisaged under the Agreement and shall be solely responsible for any costs involved in obtaining the same.
11.4 All warranties, conditions and terms not expressly set out in the Agreement, whether implied by statute, common law or otherwise (including, without limitation, warranties as to satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law.
12.1 MSM hereby agrees to indemnify the Client against all and any losses, costs, damages, liabilities, claims, demands and expenses suffered or incurred by the Client, including legal expenses reasonably and properly incurred, arising out of or connected with any claim by any third party against the Client that the use or possession of the Deliverables by the Client in accordance with the Agreement, infringes the Intellectual Property Rights or any other rights of that third party.
12.2 Notwithstanding the foregoing, the provisions of clause 12shall not apply where the infringement arises out of: (i) any Input Materials; (ii) any use of the Deliverables outside of the Applications noted in the Statement of Work; or (iii) any modification undertaken by the Client or a third party on its behalf.
12.3 The Client hereby agrees to indemnify MSM against all and any losses, costs, damages, liabilities, claims, demands and expenses suffered or incurred by MSM, including legal expenses reasonably and properly incurred, arising out of or connected with any claim by any third party against MSM that: (i) the use or possession of the Input Materials by MSM in accordance with the Agreement infringes the Intellectual Property Rights or any other rights of a third party; or (ii) arises from the Client’s failure to comply with the relevant licence terms for any Third Party Materials, or to obtain an appropriate licence for Third Party Materials, in circumstances where it is required to do so.
12.3.1 In the event a claim arises under which a party can claim under the indemnity set out in clause 12or 2, the party seeking to rely on the indemnity (the ‘Indemnified’) shall promptly and, in any event, within 15 days of being made aware of the same, notify the other party (the ‘Indemnifier’) in writing of any such claim;
12.3.2 the Indemnified shall not make any admission as to liability or agree to any settlement of or compromise any such claim without the prior written consent of the Indemnifier (such consent shall not be unreasonably withheld or delayed); and
12.3.3 the Indemnifier shall, on its written request and at its own expense, be entitled to have the conduct of or settle all negotiations and litigation arising from any such claim and the Indemnified shall, at the Indemnifier’s request, give the Indemnifier all reasonable assistance in connection with those negotiations and litigation.
13. LIMITATION OF LIABILITY
13.1 Nothing in the Agreement shall limit or exclude either party’s liability for: death or personal injury caused by its negligence; fraud or fraudulent misrepresentation; breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or any matter for which it would be unlawful for the parties to exclude liability.
13.2 Subject to clause 13, MSM shall not be liable, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement forloss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of publicity or opportunity to enhance reputation even if MSM delays or abandons production or exploitation of the Video; loss of or damage to goodwill; and any indirect or consequential loss.
13.3 Subject to clause 13and clause 2, MSM's total liability to the Client, for a claim made in respect of loss or damage suffered by the Client as a result of a breach of the terms of the Agreement, tort (including negligence), breach of statutory duty or otherwise howsoever as a result of the Agreement shall not exceed an amount equivalent to the Costs paid by the Client under the Agreement (but excluding any VAT).
13.4 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
14.1 All Confidential Information disclosed by a party to the other party (before or after the date of the Agreement), shall be held in confidence and used only for the purpose of performing the Agreement and using the Deliverables.
14.2 The foregoing restrictions on use and disclosure of Confidential Information do not apply to information to the extent that such information:
14.2.1 is in the possession of the receiving party at the time of its disclosure hereunder and not otherwise subject to obligations of confidentiality;
14.2.2 is or becomes publicly known, through no wrongful act or omission of the receiving Party or breach of the Agreement;
14.2.3 is received without restriction from a third party free to disclose it without obligation to the disclosing party;
14.2.4 is developed independently by the receiving party without reference to the Confidential Information or other information of the disclosing party; or
14.2.5 is disclosed as required by law.
15. PUBLICITY AND PROMOTION
15.1 Each party is entitled to publicise the relationship between the parties, and the broad nature of the Services and Deliverables, subject to each such publication being mutually approved in writing by the other party in advance (such approval not to be unreasonably withheld or delayed). In doing so, each party may make reasonable use of the other party’s name and trade marks in the manner approved by the other party.
15.2 MSM (and its subcontractors) shall have the non-exclusive, worldwide, irrevocable, royalty free right and licence from delivery of the Deliverables to the Client or use of the Deliverables by the Client (whichever shall be the later), to use the final Video(s) (or any part thereof) for its own promotional use, including on MSM or its subcontractors’ website, as part of its show reels and as part of its portfolio of works in internal and client and prospective client presentations.
16. POSTPONEMENT AND TERMINATION
16.1 If the Client wishes to postpone the provision of the Services (or any part of them), it must give MSM at least 4 week’s prior notice. If the Client fails to provide 4 weeks prior written notice, it shall pay all Costs in respect of the Services (which shall include without limitation all costs associated with Third Party Materials, crew and personnel costs, where such crew and personnel cannot be reasonably redeployed) up to the value of the Costs stated in the Statement of Work. The parties shall discuss and agree any reschedule of the Services, timelines (subject to availability), further Costs (if applicable) and on agreement, MSM shall produce a new Production Schedule, which once signed by the parties, shall be deemed to replace the previous Production Schedule. For the avoidance of doubt, where postponement takes place with less than 4 weeks prior written notice, the Client will be liable to pay additional costs for the rescheduled Services. The Client may only postpone the Services once. Thereafter the client must continue with the Services or exercise its rights to terminate as set out below. MSM may postpone the Services by up to 4 weeks on notice to the Client, without being in breach of this Agreement.
16.2 Subject to clause 16.3.2, the Client may terminate the Agreement up to 4 weeks before the Shoot Date on providing no less than 4 weeks prior written notice to MSM before the Shoot Date.
16.3 On termination under paragraph 1, the Client shall pay to MSM:
16.3.1 all sums that MSM is contractually obligated to pay third parties; and
16.3.2 for all of the work reasonably carried out in respect of the Services up to the date of notice, up to the value of the associated work as set out in the Costs in the SOW.
16.4 If the Client terminates the Agreement less than 4 weeks before the Shoot Date, then the Client shall pay all Costs in the Statement of Work (which shall include without limitation all costs associated with Third Party Materials, crew and personnel costs) up to the value of the Costs stated in the Statement of Work.
16.5 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
16.5.1 the other commits a material breach of any term of the Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 Business Days after being notified in writing to do so;
16.5.2 the other party becomes insolvent or involved in a liquidation or termination of its business, is placed in administration, is subject to a winding up order, or if it is in dissolution or 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 foregoing events; or
16.5.3 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
16.6 On termination of the Agreement for any reason:
16.6.1 except as stated in this Agreement, neither party shall have any further obligation to the other;
16.6.2 the rights, remedies or obligations of the parties that have accrued or become due before termination shall remain unaffected;
16.6.3 subject to payment of all monies due under this Agreement, the Client shall remain entitled to all rights granted or assigned to it under the Agreement;
16.6.4 each party shall return any Confidential Information belonging to the other in its possession or control, (or at the other party’s request, destroy such Confidential Information and any copies of the same and shall certify that it has done so in writing); and
16.6.5 any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect, including clause 1 (Definitions and Interpretation), clause 11 (Warranties), clause 4 (Indemnity), clause 12.3.3 (Limitation of Liability), clause 13.4( Confidentiality) and clauses 14.2.5 to 28 inclusive.
As part of the Services and in consideration of the Costs being paid, MSM shall store the final Video and the Edit Files in its archives for 6 months after the earlier of: (a) acceptance or deemed acceptance of the Deliverables; (b) termination; or (c) expiry of the Agreement (“Initial Archive Period”). After the Initial Archive Period, MSM will continue to store the final Video and Edit Files in its archives on an annual basis for the Archive Fee which shall be invoiced yearly in advance. In the event the Client requests the final Edit Files are destroyed it shall provide MSM no less than 3 months’ notice at any time before the end of the Initial Archive Period and pay MSM a fee for the destruction of the Edit Files.
18.1 The Client shall not, without the prior written consent of MSM at any time from the date of the Agreement to the expiry of 12 months after delivery of the last set of Deliverables, or termination or expiry of the Agreement (whichever is the later), solicit or entice away from MSM or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of MSM in the provision of the Services.
18.2 Any consent given by MSM in accordance with clause 18shall be subject to the Client paying to MSM immediately on demand, a sum equivalent to 100% of the then current annual remuneration (including benefits) of MSM's employee, consultant or subcontractor.
19. ASSIGNMENT AND OTHER DEALINGS
19.1 Neither party shall, without the prior written consent of the other, assign, transfer, mortgage, charge, or declare a trust over its rights and obligations under the Agreement.
19.2 MSM will be entitled to sub-contract any of its obligations under the Agreement. For the avoidance of doubt, MSM shall remain liable for the acts and omissions of any sub-contractors that it engages in connection with the Agreement.
20. FORCE MAJEURE
Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks the party not affected may terminate the Agreement with immediate effect.
21. THIRD-PARTY RIGHTS
No one other than a party to the Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
22. NO PARTNERSHIP OR AGENCY
22.1 Nothing in the Agreement 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.
22.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
No variation of the Agreement shall be effective unless it is in writing and signed by the authorised representatives of the parties.
25.1 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be:
25.1.1 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
25.1.2 sent by e-mail to its main e-mail address.
25.2 Any notice or communication shall be deemed to have been received:
25.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
25.2.2 if sent by prepaid first-class post or other next working day delivery service, at 11.00 am on the second Business Day after posting; or
25.2.3 if sent by e-mail at 9.00am on the next Business Day after transmission.
25.3 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.
25.4 The provisions of this clause 25 shall not apply to the service of any proceedings or other documents in any legal action.
26. ENTIRE AGREEMENT
26.1 The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
26.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
27. GOVERNING LAW
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).