PinPointUK Limited trading as PinPointMedia (collectively referred to as “we”, “us” or “our” in these terms) is a company registered in England and Wales with company number 08448972.
1. DEFINITIONS AND INTERPRETATION
1.1. The following definitions and rules of interpretation apply in these Conditions:
“Contract” means the agreement entered into by you and us for the supply of Services in accordance with these Conditions;
“Conditions”these terms and conditions as amended from time to time;
“Deliverables” means the deliverables as set out in the Scope of Works;
“Design Brief” means the storyboard, call sheet, design document, script or other written description of the Project including (if relevant) any Samples.
“Fees”means any and all sums due under the Contract from you to us, as specified in the Contract;
“Intellectual Property Rights” means patents, copyright and related rights, moral rights, trade marks, service marks, trade, business and company names, internet domain names, rights in get up, goodwill and the right to sue for passing off, rights in designs and inventions, database rights, rights to use and protect confidentiality of, confidential information (including know-how and trade secrets) 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 rights to claim priority from, such rights 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.
“Order” your order for the Services to be provided by us which shall take the form of either your written acceptance of our quotation or your purchase order form, or payment of the deposit as the case may be.
“Original Material” all audio and video footage obtained by us in the course of providing the Services but not used in the Deliverables. Original Material includes video recordings, graphics, soundtracks, printed material, animation, photographs, video stills and any other design or artwork commissioned by you and generated by us in performance of the Services;
“Project” means a project agreed between you and us to provide the Services.
“Project Fee” means the estimated fees and expenses or the agreed fixed fee for the Project as set out in our quote.
“Samples” means any animation style or any audio, voiceover or stock film footage samples.
“Services” means the services, including the Deliverables, to be provided by us to you in relation to the Project.
“Suspension Fees” means any and all pre-production and production time incurred, expenses already incurred, studio time, scheduled filming, third party invoices and any equipment which has already been booked.
2. BASIS OF CONTRACT
2.1. Upon receiving an enquiry from you, our sales team shall work with you to agree the initial outline for the project (Scope of Works).
2.2. On the basis of the Scope of Works, our sales team will issue a quote for the Project Fee.
2.3. The issue of a purchase order number or payment of a deposit in respect of the Project Fee constitutes an offer by you to purchase Services in accordance with these Conditions.
2.4. Your Order shall only be deemed to be accepted when we issue a written acceptance (which may be by email), at which point and on which date the Contract shall come into existence (Commencement Date).
2.5. Any samples, drawings, descriptive matter or advertising issued by us, and any description or illustrations contained in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract nor have any contractual force.
2.6. These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.7. Any quotation given by us shall not constitute an offer and, unless otherwise specified, is only valid for a period of 30 days from issue.
3. PROVISION OF THE SERVICES
3.1. With effect from the Commencement Date we shall provide the Services to you using reasonable skill and care and in accordance with the Design Brief in all material respects.
3.2. We shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4. DESIGN PROCESS
4.1. Using the Scope of Works as a guide, our design team shall work with you to plan the Design Brief and the Deliverables for the Project.
4.2. We shall accommodate any reasonable changes to the Scope of Works that may be requested by you at this point, subject to your acceptance of any reasonable changes to the Project Fee that may be due as a result.
4.3. Once approved, any changes to the Design Brief may result in additional Fees including, but not limited to, any Fees to re-record any voiceover or film footage already recorded or re-animate a storyboard due to changes in the script or if you change your mind about the Samples utilised. The Samples included within the Project Fee will be our standard Samples only, premium Samples are available at an additional cost.
4.4. Unless specified otherwise, two rounds of amendments (limited to a total of 8 hours studio time) to the initial draft are included within the Project Fee. Further editing, or any fundamental changes, will be charged at our day rates.
5. YOUR OBLIGATIONS
5.1. You shall:
(a) ensure that the terms of the Order and any information you provide in the Design Brief or Scope of Works is complete and accurate;
(b) provide full details of the filming location including any health and safety aspects to be considered (e.g. small spaces, working at height, working with animals);
(c) co-operate with us in all matters relating to the Services including the prompt provision of any instructions, decision, approval or consent required by us in order to continue with the provision of the Services;
(d) ensure that you and your employees, agents, consultants and subcontractors are not abusive or threatening;
(e) provide us, our employees, agents, consultants and subcontractors, with access to your premises and other facilities as reasonably required by us;
(f) prepare your premises or any alternative filming location for the supply of the Services;
(g) obtain any necessary consent for the inclusion of any actor or other individual who is not supplied by us, and any artwork, photographs, trade marks and locations featured in the filming or any other copyright material supplied by you;
(h) obtain and maintain all necessary consents, licences or other permissions required from any third parties such as landlords, planning authorities, local authorities or similar for the performance of the Services (including the filming location) before the date on which filming is due to start;
(i) comply with all applicable laws, including health and safety laws, and provide us and our employees, agents or contractors with personal protection equipment (PPE) if necessary for the purposes of filming at the location;
(j) keep all materials, equipment, documents and other property of ours, including filming and camera equipment (Company Materials) at your premises in safe custody at your own risk, maintain the Company Materials in good condition until returned to us, and not dispose of or use the Company Materials other than in accordance with our written instructions or authorisation.
5.2. If our performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (Default) then:
(a) without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Services until you remedy the Default, and to rely on the Default to relieve us from the performance of any of our obligations in each case to the extent the Default prevents or delays our performance of any of our obligations;
(b) we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this Clause 5.2; and
(c) you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Default.
5.3. For the purposes of clause5.2Default shall include circumstances where we are unable to perform the Services because:
(a) you have breached any of your obligations in clause 5.1;and
(b) you have failed to approve or materially altered the Design Brief and, in our reasonable opinion, there is insufficient time to resolve the issues prior to the Shoot.
6. FEES AND EXPENSES
6.1. Fees shall be calculated in accordance with our daily fee rates, as set out in our current price list at the date of the Contract.
6.2. Overtime may be charged for any time worked on a weekend or otherwise outside the hours of 9:00AM to 5:00PM on week days.
6.3. We shall charge for any expenses reasonably incurred in connection with the Services including travel costs, hotels, parking, and any associated expenses, and for the cost of services provided by third parties and required by us for the performance of the Services, and for the cost of any materials noting that we shall:
(a) use reasonable endeavours to ensure any accommodation booked is as cost-effective as possible within the area;
(b) obtain your approval in advance for any individual expense in excess of £200.00 which is not included within the Project Fee;
(c) recover mileage at the rate of 45p per mile. Long distance travel (air, sea etc.) shall be invoiced and payable in advance.
6.4. We shall, on request, provide you with the Original Material, subject to receipt in cleared funds of an agreed fee (as stated in our quote but in default, in the sum of £255+VAT).
6.5. Should you fail to confirm to us your requirement for the Original Material (and submit payment of the agreed fee in cleared funds) within 30 days of delivery of the Deliverables, we shall be at liberty to erase and permanently destroy all Original Material with no obligation or liability to you.
6.6. We can retain the Original Material in our archive, subject to payment of a separate fee for the archiving service.
6.7. We reserve the right to retain and use any Original Materials which you have not requested.
7. INVOICING AND PAYMENT
7.1. We shall invoice you as follows:
(a) A non-refundable deposit of 40% of the Project Fee will be taken on the Commencement Date;
(b) An interim invoice of 30% of the Project Fee will be issued on the first day of filming or on the first draft of an animation (as applicable); and
(c) A final invoice of the balance of the outstanding Fees plus expenses will be issued on the earlier of: (i) acceptance of the Deliverables; or (ii) 10 days from delivery of the Deliverables.
7.2. As an alternative to a deposit we may, at our option, accept a purchase order number for a sum equivalent to the Project Fee.
7.3. You shall pay each invoice in full and without deduction: (a) within 7 days of the date of the invoice; (b) in pounds sterling in cleared funds to such bank account as nominated by us in writing. Time shall be of the essence of the Contract. We shall not release any Deliverables to you until our Fees have been paid in full.
7.4. All amounts payable are exclusive of VAT at the prevailing rate.
7.5. If you fail to make a payment due to us under the Contract by the due date then, without limiting our remedies under clause 11and clause 12, you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment at a rate of 4% per year above the Bank of England’s base rate from time to time (but at 4% a year for any period when that base rate is below 0%).
8. INTELLECTUAL PROPERTY
8.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by you) shall be owned by us.
8.2. Subject to payment of the Fees, we grant you, or shall procure the direct grant to you of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by you) for the purpose of using the Services and Deliverables in your business.
8.3. You grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you for the purpose of providing the Services.
8.4. You shall indemnify us against any costs, claims, damages or expenses incurred by us, or for which we may become liable, with respect to any intellectual property infringement claim or other claim brought against us in respect of material supplied by you.
8.5. You shall, on reasonable request, permit us to include a discrete production credit within the Deliverables.
9. LIABILITY, INDEMNITY AND INSURANCE
9.1. In the event that we fail to perform the Services with reasonable care and skill we shall carry out any remedial action reasonably necessary at no additional cost to you.
9.2. Subject to clause 9.5, we shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, other otherwise, for:
(a) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; or
(b) any: (i) loss of profit; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption or software, data or information; or (vi) loss of or damage to goodwill.
9.3. Our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 125% of the price of the Services.
9.4. We shall not be liable for any loss or damage suffered by you resulting from your failure to follow any instructions given by us or any failure by you to comply with your obligations in clause 5.
9.5. Nothing in this Contract shall limit or exclude any liability which cannot legally be limited, including but not limited to, death or personal injury caused by negligence; fraud or fraudulent misrepresentation; and breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.
9.6. You shall indemnify us against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including that belonging to any third parties appointed by us) caused by you or your agents or employees.
9.7. Whilst every care is taken in the handling of your property, we accept no liability whatsoever for any loss or damage, howsoever caused, or any other loss by unforeseen circumstances whilst they are in our possession, custody or control. Subject to clause 9.5, all and any liability for such loss or damage will be limited to the replacement cost of the materials or media and in no circumstances will any liability attach to any claim for the value of the content.
10.1. Each Party undertakes that, except as provided by clause 10.2or as authorised in writing by the other party, it shall not at any time during the Contract, and for 12 months after its termination:
(a) disclose any confidential information concerning the business, affairs, customers, clients or suppliers of the other party; or
(b) use any confidential information for any purpose other than to perform its obligations under the Contract.
10.2. Either party may disclose any confidential information to:
(a) its employees, officers, representatives, sub-contractors, suppliers, or advisors who need to know such information for the purposes of carrying out that party’s obligations under the Contract; and
(b) As may be required by law, a court or competent jurisdiction or any governmental or other regulatory authority.
10.3. Each party shall ensure that its employees, officers, representatives, sub-contractors, suppliers, or advisors to whom it makes a disclose comply with this clause 10.
11. SUSPENSION OF SERVICES
11.1. You:You may postpone the Project on giving us notice in writing. Any recommencement of the Project must take place within 6 months of the postponement. You may only postpone the Project a maximum of 3 times.
11.2. In the event that you give notice to postpone the Project, you shall be liable to us as follows:
(a) 30+ days before the start date:any expenses already incurred.
(b) 21-30 days before the start date:60% of the Suspension Fees;
(c) 11-20 days before the start date:80% of the Suspension Fees;
(d) 0-10 days before the start date: 100% of the Suspension Fees.
For the purposes of this clause, the start date shall mean the date on which we are scheduled to commence filming or animating the Project.
11.3. Us:We reserve the right to suspend or postpone any date for filming for any reason (including, without limitation, Default, or if you are in default of payment of any fees due) on 48 hours notice to you. You agree that:
(a) Weshall not be in breach of this agreement by virtue of that cancellation or postponement;
(b) We and you shall use reasonable endeavours to agree a rescheduled date for filming.
12.1. Without affecting any other right or remedy available to it, either party may terminate the Contract on giving 30 days’ written notice.
12.2. Either party may immediately terminate the Contract by giving written notice to the other if:
(a) any sum owed to the receiving party is not paid within 7 days of the due date for payment;
(b) the other party commits any other material breach of any term of the Contract and (if the breach is remedial) fails to remedy it within 14 days after being given written notice to do so;
(c) the other party takes any step or action (other than in relation to a solvent restructuring) in connection with entering administration, provisional liquidation or any composition or arrangement with its creditors, being wound up (whether voluntarily or by order of the court), having a receiver appointed to any of its assets or ceasing to carry on business;
(d) the other party cease to carry on all or a substantial part of its business; or
(e) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion it is unable to pay its debts.
13. EFFECTS OF TERMINATION
13.1. Upon the termination of the Contract for any reason:
(a) we shall retain any deposit paid and, where no deposit has been paid, we shall issue an invoice for the deposit against the purchase order given which shall be payable by you immediately upon receipt.
(b) you shall immediately pay to us all of our outstanding unpaid invoices and interest, and, in respect of Services for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
(c) you shall return all of the Company Materials and any Deliverables which have not been fully paid for. If you fail to do so, then we may enter your premises and take possession of them. Until such return, you shall be solely responsible for their safe keeping and will not use them for any purpose;
(d) each party shall 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; and
(e) save as provided in clause 8.2and clause 6.4, your permission to use our Intellectual Property Rights shall immediately cease and you shall immediately return to us any material in your possession or control.
13.2. Any provision which, either expressly or by implication, is intended to come into or continue in force on or after termination shall remain in full force and effect.
14. DISPUTE RESOLUTION
14.1. If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause 14:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the parties nominated representatives shall attempt in good faith to resolve the Dispute;
(b) if the parties are for any reason unable to resolve the Dispute within 20 days of service of the Dispute Notice, the parties agree to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 20 days service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 30 days after the date of the ADR notice.
(c) The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute.
15. DATA PROTECTION
16. FORCE MAJEURE
16.1. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a force majeure event.
16.2. If the force majeure event continues for a period of 3 months or more, either party may at its discretion terminate the Contract immediately by written notice. In the event of such termination, the parties shall agree upon a fair and reasonable payment for all Services provided 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 Contract.
17.1. Non-Solicitation.Neither party shall, for the term of the Contract and for a period of 12 months after its termination:
(a) 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 Contract ;
(b) 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.
17.2. Notices. Any notice to be given under the Contract shall be given in writing by pre-paid first-class post (or other next working day delivery service) sent to the registered address of the party to be notified. Such notice shall be deemed to have been received by the party on the second business day following posting. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
17.3. Severance. If any provision of this Contract shall prove to be invalid or unenforceable, that Condition shall be deemed modified to the minimum extent necessary to make it valid and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification or deleted shall not affect the remainder of the Contract.
17.4. Waiver. No failure or delay by us in exercising any right or remedy provided under the Contract 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.
17.5. Variation.No variation of the Contract shall be effective unless it is in writing and signed by the parties.
17.6. Assignment. You may not assign or deal in any other manner with any or all of your rights or obligations under the Contract without our prior written consent.
17.7. Third party rights. No one other than a party to this Contract shall have any right to enforce any of its terms.
(a) A reference to “writing” or “written” includes fax and email;
(b) Any reference to 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;
(c) The headings used in these Conditions are for convenience only and shall have no effect upon interpretation.
17.9. Governing Law and Jurisdiction. This Contract shall in all respects be construed and take effect according to the laws of England and Wales whose courts shall have exclusive jurisdiction.