Terms and conditions

Module1 Media & Design

Terms and conditions of trade

Feb 2016

# 1 Terms and conditions: These terms and conditions apply to the supply of Services by the Agency to the Client. The acceptance of the Quote and/or confirmation to proceed by the Client to the Agency for the supply of the Services shall amount to the Client’s acceptance of these terms. These terms and conditions shall take precedence over any terms and conditions of the Client, whether attached to, enclosed with or referred to in any purchase order of the Client or elsewhere. They may not be varied except by written agreement between the Agency and the Client.

# 2 Definitions: In these terms and conditions the following words shall have the meanings given in this clause:

2.1’Agency’ means Module1 Media & Design of 11 Rue de Bouteiller, Metz, France, 57000.

2.2’Client’ means the person, firm or company employing the services of the Agency;

2.3’Deliverables’ means all copy, layouts, artwork, storyboards, scripts, presentations, drawings, documents, charts, graphics, photographs, films and/or other materials created or produced by or on behalf of the Agency for the Client in the course of providing the Services.

2.4’Final Cut’ means the completed edited version of the final Deliverable;

2.5’Purpose’ means the purpose for which the Client engages the Agency as set out in the Quote;

2.6’Services’ means the supply of services and/or materials by the Agency to the Client as set out in the Quote.

2.7’Services Cost’ means the fee set out in the Quote to be charged by the Agency for the Services;

2.8’Rights’ means all copyright and related rights, design rights (whether registered or unregistered), patents, rights in trade marks (whether registered or unregistered), database rights and any other intellectual property rights (including all similar or equivalent rights or forms of protection in any part of the world) in or relating to the Deliverables.

2.9’Quote’ means the quotation for the Services.

# 3 The Agency’s obligations: The Agency will use its reasonable care and skill in the production and supply to the Client of the Services and Deliverables as per the Quote.

# 4 Payment: In return for the supply of the Services the Client shall pay the Services Cost. Unless agreed otherwise in writing, 50% of the Services Cost as a non-refundable deposit shall be paid at the time of acceptance of the Quote and prior to commencement of work. The remaining 50% shall be payable on completion of the Deliverables.

Without prejudice to any other right or remedy that it may have, if the Client fails to pay any sums to the Agency on the due date, the Agency may charge the Client interest at 8% per year above the base rate of the Agency’s bank from time to time accruing daily and compounded annually on every invoice overdue for payment calculated from the date of the invoice until the date of payment whether before or after judgment, and may suspend all of its obligations hereunder until payment has been made in full.

All rates, quotations or prices given are exclusive of VAT at the prevailing rate unless indicated otherwise.

# 5 Expenses: The Agency’s fees shall be exclusive of disbursements and expense items such as studio costs, messenger services, postage, overseas telephone charges, colour photocopying, photography and prints, disk or tape duplications, creation of audio and video streaming files, travel accommodation, subsistence, fax charges and similar items which will be invoiced to the Client, or separately as necessary.

The Agency will, where practicable, endeavour to estimate such but this will not always be possible. All expenses shall be invoiced by the Agency and the Client shall pay such invoices as detailed by the Agency.

Where expenses are likely to be significant, the Agency reserves the right to require the Client to pay the full amount of the expected expense in advance. General out-of-pocket expenses incurred in supplying the Deliverables, such as courier charges, travelling and hotel expenses, will be charged by the Agency at cost and the Client shall pay the relevant invoices as detailed by the Agency.

Where extra expenses are incurred, either as a result of alterations to the Services or otherwise at the Client’s request, the Client shall pay such expenses by way of settlement of the relevant invoices as detailed by the Agency.

# 6 Deliverables and Changes: The parties recognise it is the nature of the Services that changes may be required to the Services and/or Deliverables prior to completion of the Deliverables. The Quote is inclusive of the production by the Agency of a running order, director’s cut, client cut 1 and a Final Cut of the Deliverables.

Reasonable changes (depending on the stage) are anticipated within the Quote, however, major changes and additional rounds of production may result in an increase in the Services Cost in which case the Agency shall not proceed with further Services until such changes and the increased Services Cost are agreed and confirmed by the Client. E-mail correspondence shall be sufficient to prove the Client’s approval to such changes.

# 7 Production: Unless otherwise agreed in writing the Agency shall arrange and oversee all production and post-production related to the Deliverables. Should it be agreed that the Client arranges any production work itself, then in that regard the Agency shall not be responsible for the booking, supervision or quality control of any relevant facilities, nor will it be responsible for payment of any related charges.

Any provision requiring the Agency to work to specific deadlines will be deemed to include a proviso that the Client will deal with all requests for approval as quickly as possible and will make themselves reasonably available to communicate with the Agency, its servants or agents, as necessary.

# 8 Approvals: Approval by the Client of copy, layouts, scripts, storyboards, early video cuts, designs and the like will be the Agency’s authority to proceed with production or publication as appropriate.

Where artwork, films, motion graphics or other material is sent to the Client for final approval, the Client shall check it carefully and notify the Agency of any errors or alterations. The Agency shall use its reasonable endeavours to remedy any errors so notified but the Agency reserves the right to charge extra for any alterations at this stage. Where notification of errors is either unreasonably delayed or does not occur at all before publication, the Agency shall not be liable in respect of any such errors.

Where the Client oversees distribution, the Agency shall not be liable in respect of errors which may occur after the handover of artwork, uploading or display of the final film, graphic or other works.

Deliverables will only be released by the Agency once the customer approves all content as complete and satisfactory and confirms this in writing.

# 9 Rights: Unless stated specifically otherwise in the Quote all Rights in the Deliverables shall be owned by the Agency. Subject to payment of the Services Cost in full the Agency shall grant the Client a revocable royalty free licence, to use the Final Cut for the Purpose in the territories set out in in the Quote. Nothing in this clause confers a right on the Client to use separate elements of the Final Cut such as logos, characters, graphics etc in isolation of the Final Cut. Such licence shall automatically terminate if the Client is in breach of these terms and conditions.

The Client shall not make any modification to the Deliverables including the Final Cut and if the Client wishes to use or modify the Deliverables including the Final Cut in anyway or to use the Final Cut for any reason other than the Purpose it must approach the Agency and obtain written consent.

The Client confirms any material that the Client supplies to the Agency for use in the production of the Deliverables does not infringe the Rights of any third party and the Client shall indemnify the Agency against all or any claims, losses, expenses, proceedings, actions, awards, liabilities, costs (including legal costs on a full indemnity basis and increased administration costs) and any other losses and/or liabilities arising out of such material.

The Deliverables may include materials that are authored, created or performed by a third-party such as music and/or library photographs etc. The Agency shall ensure that the Client is made aware of the inclusion of such material and shall ensure that a licence is obtained from the relevant Rights owner on such terms as will entitle the Client to use the Final Cut for the Purpose. Use of those third party materials may involve the Client in continuing liability to those third parties, for example for royalties, licence fees and performance fees.

For the avoidance of doubt, where the Agency makes any presentation to the Client containing any materials that are not incorporated into the Final Cut, the Client shall have no right to make use of any such materials unless and until a separate contract is entered into between the parties.

The Agency reserves the right to use part or all of any Deliverables in its own promotional literature, including, but not exclusive to marketing DVD’s, websites and printed literature.

# 10 Compliance: Except where the Agency agrees to the contrary, it shall be the sole responsibility of the Client to ensure that the Deliverables comply with all local laws (whether consumer, public or civil), regulations and codes in all countries in which use is intended as stated in these terms and conditions. It shall also be the Client’s responsibility to ensure that the Deliverables carry all disclaimers, warnings and public information which any competent lawyer of the Client in any of the relevant jurisdictions would advise.

Accordingly the Client agrees to indemnify and hold harmless the Agency and the Agency’s agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including reasonable legal fees) arising from any claim, demand or action alleging that the Deliverables or use of them are contrary to any law, code or regulation in any country.

# 11 Trademarks and domain names: If any Deliverables use any trade marks, trading styles or trade names (‘Marks’) owned by the Client or under its control, it is agreed that the Agency shall have the right to use or allow use of any such Marks for the purpose of fulfilling the Agency’s obligations under these terms and conditions. The Agency shall not gain any rights over such Marks by virtue of such use, but the Agency shall be entitled to use the Marks both during and after the production and supply of the Deliverables to promote and advertise its own work.

It shall be the Client’s responsibility to ensure that all domain names used in connection with the Deliverables are wherever practicable properly registered and do not infringe any third party rights and that any Marks of the Client or any third party used in the Deliverables.

# 12 Rejection or cancellation: Cancellation of the Services by the Client shall result in forfeiture of the initial 50% payment of the Services Cost and the Client shall further be liable for any balance of the Services Cost over and above the 50% incurred by the Agency to the date of the cancellation, excluding such committed third party expenses as the Agency is able to avoid liability for within its existing contractual commitments to suppliers.

# 13 Obscenity: The Agency reserves the right to refuse to use, publish or broadcast any information it considers obscene or morally unsuitable or which would breach copyrights, or which is libellous, defamatory or illegal. Should such a submission occur, the Client will be advised which information was deemed unsuitable, and requested to amend the information. If the Client can show good reason to use the “unsuitable” information, its inclusion may be considered.

# 14 Property: Where Deliverables are supplied to the Client on computer disks or other electronic storage method, then the Agency remains the owner of these storage media and reserves the right to require immediate return of them.

# 15 Default: Any account unpaid 30 days after the date of invoice will be considered to be in default. Cheques returned as unpaid or refer to drawer will incur a return charge of €30 and the Client’s account will immediately be considered in default until full payment is received. The Client agrees to pay the Agency’s reasonable expenses, including legal fees and costs for collection by third-party agencies in enforcing these terms and conditions.

# 16 Liability: Nothing in these terms and conditions shall exclude or restrict the Agency’s liability for death or personal injury resulting from its negligence, liability for fraudulent misrepresentation or any other liability which cannot be excluded or limited under applicable law. Subject to this:

16.1 The Agency’s total liability to the Client in contract law or in tort or otherwise howsoever arising in relation to these terms and conditions is limited to the Services Cost for the Deliverables;

16.2 The Agency shall not be liable in any way in respect of any failure, delay or defect in the supply or use of the Deliverables caused by the supply or specification by the Client of unsuitable material or content or by the reproduction of the Deliverables by a third party; and

16.3 The Agency will not be liable to the Client for economic loss including loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of any description howsoever caused and even if foreseeable by the Agency.

All warranties, conditions and other terms implied by statute, common law or otherwise are hereby excluded from these terms and conditions to the fullest extent permitted by law.

# 17 Agency’s status: The Agency acts as a principal and not as agent for the Client and will enter into all related contracts as principal.

# 18 Sub-contracting and assignment: The Agency may sub- contract any or all of its rights or obligations under these terms and conditions and may with the Client’s consent, such consent not to be unreasonably withheld or delayed, assign the benefit and burden of its rights and obligations under these terms and conditions to any other entity.

# 19 Confidential information: Neither party shall divulge any confidential information which is supplied to it about the other party in the course of the Services or any pre- agreement discussions, other than information forming part of the public domain otherwise than through a breach of this clause or any other obligation of confidence.

# 20 Termination: Either party may by notice in writing to the other terminate the Services forthwith if the other shall fail to make any payment due under these terms and conditions in accordance with the invoice requirements after the due date, or to remedy any other breach within 30 days after being required to do so in writing. Such termination shall be without prejudice to the parties’ accrued rights and liabilities, in particular, the Agency’s entitlement to payment for work done.

# 21 Complaints: Any claims must be made in writing to the Agency at the address shown in the Quote within 7 days of receipt of the Deliverables. If no claim is made within this period the Client is deemed to have accepted the Deliverables.

# 22 Matters beyond the Agency’s reasonable control: The Agency is not liable for any breach of these terms and conditions caused by matters beyond its reasonable control including acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving the Agency’s employees), weather of exceptional severity, unavoidable hardware or software failures, or acts of local or central government or other authorities.

The Agency cannot be held liable to any party for any errors on any medium after the Client has agreed in writing that the content is correct and accurate and should be posted, published or broadcast.

# 23 Entire agreement: These terms and conditions are the entire agreement between the parties on the subject matter contained herein and supersedes all representations, communications and prior agreements between the parties in that regard. Each party acknowledges that it has entered into these terms and conditions in reliance only on the representations, warranties, promises and terms contained or expressly referred to in these terms and conditions and, save as expressly set out in these terms and conditions, neither party shall have any liability in respect of any other representation, warranty or promise unless it was made fraudulently.

# 24 Third party rights: Unless expressly provided in these terms and conditions, no term of these terms and conditions is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.

# 25 of notices: Any written notice required by these terms and conditions should be sent to the business address of the intended recipient shown overleaf. Notices can be sent by hand, by post or by fax.

# 26 Governing law and jurisdiction: These terms and conditions and any dispute or claim arising out of or in connection with the or their subject matter shall be governed by and construed in accordance with European law and each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of France.