The following terms and conditions shall apply in relation to the supply of any services or goods, Facilities and Materials by Television Communications Ltd (herein referred to as TVC Soho) and to all contracts for the same entered into between TVC Soho and the Customer into all of which such contracts these terms and conditions are incorporated. They supersede all previous conditions and override any alternative conditions stipulated or referred to by the Customer and constitute the entire terms and conditions applicable to all or any agreement between TVC Soho and the Customer.
1.1 Unless inconsistent with the context, in these terms and conditions:- ’Booking’ means the booking period for which TVC Soho has agreed to provide the Facilities to the Customer; ’Customer’ means the person, firm or company using the services of TVC Soho; ’Customer’s Property’ means any of the Customer’s works, tapes, films or other materials, equipment or other property whether in physical, electronic, digital or any other form which is the subject of the Facilities and is provided to TVC Soho; ’Facilities’ means the pre/post-production equipment, personnel, creative and production facilities and services which TVC Soho is providing to the Customer in accordance with these terms and conditions; ’Materials’ means all unfinished or final forms of audio or visual material including without limitation tapes, films, advertisements, digital or electronic output or other materials processed, produced or otherwise provided by TVC Soho pursuant to a Booking.
2. Rates and Fees and Charges
2.1 The rates charged by TVC Soho are those that are published from time to time in TVC Sohos’ rate card. Publication by TVC Soho of its rate card and the supply of any quotations or estimates to any person constitute an invitation to treat. The Customers order is an offer and shall become binding only upon TVC Sohos acceptance. The rates quoted do not include Value Added Tax. All media stock, courier and delivery charges, currency fluctuations, meals, long-distance telecommunications expenses and other outof-pocket costs and disbursements incurred by TVC Soho shall be separately charged for by TVC Soho and paid for by the Customer, together with any additional costs incurred by TVC Soho as a result of (i) Customers Property or other materials supplied by the Customer being in the opinion of TVC Soho in any way defective or in an unsuitable format or of an unsuitable quality; or (ii) the information supplied by the Customer or any third party in connection with its requirements not providing a full and accurate indication of the work involved, or if such requirements are altered or added to by the Customer subsequent to the date of the Booking,
together with any VAT thereon.
2.2 TVC Soho reserves the right to change the rates quoted in the rate card at any time without prior notice, or by specific written agreement with the Customer to agree to charge rates different from those specified in the rate card in respect of a specific Booking.
3.1 Whilst all the time, cost and price estimates given by TVC Soho are given in good faith and TVC Soho will endeavour to adhere to such estimates, time shall not be of the essence and estimated times are not guaranteed. Without prejudice to the generality of the foregoing, TVC Soho will not be bound by or liable for any failure to meet such estimates where they are not met due to the Customer’s changes, failure to provide information or materials or Customers Property in a timely fashion or as a result of any other circumstances outside TVC Soho control. TVC Soho will not be responsible for any costs, charges, damages or expenses incurred by the Customer as a result of such failure.
4.1 Except where these terms and conditions provide otherwise, and subject to paragraph (4.3) below, payment of all fees and charges incurred shall be made to TVC Soho within 28 days of the date of invoice and TVC Soho reserves the right to charge interest at a rate 4% in excess of the then-prevailing Bank Base Rate or LIBOR (at TVC Sohos’ option) on late payment from the due date for payment until the actual date of payment.
4.2 All sums payable by the Customer shall be paid in full and in the currency in which they are invoiced without any deduction whatsoever, whether by way of set-off, counterclaim or otherwise and for the avoidance of doubt the Customer shall not be entitled to the benefit of any such deduction to which it might otherwise be entitled in law or in equity. TVC Soho shall be entitled in the event of non-payment in whole or in part to enforce any judgment obtained in relation thereto without any stay of execution pending the determination of any claim by the Customer against TVC Soho.
4.3 TVC Soho reserves the right to, and will generally, require payment of all fees and charges, in full or in part, in advance of, or in instalments during, the performance of the Booking or the provision of the Facilities.
4.4 Any queries on any invoice must be raised within 7 days of the date of the invoice.
5.1 In its absolute discretion, TVC Soho may at any time permit cancellation by the Customer of a Booking or order and reserves the right to cancel any booking or order in the event of any breach of these terms and conditions by the Customer.
5.2 In the event of any such cancellation being permitted or instigated by TVC Soho less than one full 24 hour working day before the start of the Booking period, the Booking will be charged at the full rate under TVC Sohos’ rate card current at the date of cancellation or, if greater, at the agreed rate for the Booking.
5.3 In the event of such cancellation being permitted or instigated by TVC Soho between five and one full 24 hour working days before the start of the Booking period, the Booking will be charged at 50% of the full rate under TVC Sohos’ rate card current at the date of cancellation or, if greater, at the agreed rate for the Booking.
5.4 In addition to the above mentioned cancellation charges, TVC Soho will be entitled to be reimbursed for any costs or expenses which it may have incurred arising from the cancellation of the Booking.
6. Lien and Delivery
6.1 Until payment in cash or cleared funds of all monies due from the Customer to TVC Soho pursuant to a particular invoice or Booking:-
6.1.1 the physical property in all Materials shall, notwithstanding delivery, remain vested in TVC Soho, and the Customer shall hold the same as a bailee of TVC Soho and shall store the Materials separately from its other goods and keep full records of any third parties to whom it sells or disposes of the same;
6.1.2 TVC Soho shall have a general lien over any property of the Customer including any Customers Property in TVC Sohos’ possession for such monies due: and
6.1.3 the licence granted by TVC Soho to the Customer pursuant to clause (8.2) shall not take effect.
6.2 Furthermore such property shall not pass to the Customer until TVC Soho has also received payment in cash or cleared funds of all monies due from the Customer to TVC Soho under any other invoices, Bookings or business transactions.
6.3 The Customer hereby grants an irrevocable licence to TVC Soho so that it may enter upon any premises where any property of any kind of the Customer is stored or where it is 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, TVC Soho 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 TVC Soho will endeavour to deliver any Materials as soon as practicable after receipt of all sums due to TVC Soho from the Customer but TVC Soho 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 TVC Soho.
7.1 Risk of damage to or loss of the Materials shall pass to the Customer at the time when the Materials leave the premises of TVC Soho save where, at the Customers specific request, TVC Soho has specifically agreed in writing to make delivery itself or arrange for delivery through a third party at a particular time and to a particular place, when risk of damage to or loss of the Materials shall pass to the Customer when the Materials are actually delivered to that place, or if the Customer fails to take delivery, when delivery is tendered.
7.2 The Customer acknowledges that it is not possible for TVC Soho to obtain insurance against any lost costs of production arising from loss of or damage to the Customer’s Property.
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 by loss or damage to the Customer’s Property (and its content) whilst under the custody or control of TVC Soho. In addition, the Customer shall keep at its premises a full back-up copy of all versions of any Customers Property.
8. Intellectual Property in Materials
8.1 All Copyright in any recordings, software, images or other works resulting from the provision of the Facilities and/or embodied in any Materials shall be vested in, and be the exclusive property of, TVC Soho.
8.2 Subject to TVC Soho having received payment in cash or cleared funds of all monies due from the Customer to TVC Soho pursuant to a Booking, TVC Soho grants the Customer an exclusive licence to publish and transmit the finished Materials as a whole in their final form as supplied by TVC Soho for the purpose originally contemplated.
8.3 The Customer shall have no rights whatsoever (and undertakes not) to use any part of the Materials or intellectual property of any type whatsoever contained in them separately from the finished Materials as a whole in their final form as supplied by TVC Soho for the purpose originally contemplated or for any other purpose whatsoever.
8.4 Notwithstanding anything to the contrary contained herein, TVC Soho shall retain ownership and possession of, and shall not be required to deliver to the Customer, any mechanical devices, processes, contractors know how, source or object code or application software which are used as tools to create the Materials (“Contractor Technology”). TVC Soho shall own the Contractor Technology, as well as all intellectual property rights related to the Contractor Technology, including but not limited to, any copyrights, trademarks, trade secrets or patents in connection therewith. Notwithstanding the foregoing, TVC Soho hereby grants to the Customer a nonexclusive licence in and to the Contractor Technology in perpetuity, to the extent only that the same is necessary for the exploitation by the Customer as envisaged by the parties hereunder of the Materials and all ancillary and allied rights therein and thereto.
9. Confidential Information
9.1 The Customer shall take proper steps to keep confidential all confidential information relating to TVC Soho or its business or financial affairs or the Facilities or other services provided by it, including any computer programs, production techniques, Contactor Technology, databases and any original ideas and concepts, know-how, designs and processes incorporated in or inherent in the materials, 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) (’Confidential Information’).
9.2 The Customer will not use or divulge any Confidential Information to any person (other than its professional advisers) and upon the termination of the Booking period, the Customer will return to TVC Soho any Confidential Information (without retaining copies thereof) and any equipment or other goods provided by TVC Soho (other than, for the avoidance of doubt, the Materials).
10. TVC Soho 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 is entirely at the Customer’s risk and TVC Soho 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 the Booking is delayed, postponed, curtailed or cancelled for any reason, then unless such delay, postponement, curtailment or cancellation shall have been caused by the gross negligence of TVC Soho, TVC Soho shall not be liable for any loss or damage suffered by the Customer by reason thereof;
10.1.3 TVC Soho shall not in any event be liable for economic loss (including loss of profit or goodwill) or any indirect or consequential loss or damage; and
10.1.4 All warranties, conditions, terms and representations relating to goods or services supplied by TVC Soho (whether expressly, or implied by statue, common law, use or otherwise) are hereby excluded.
10.2 Nothing herein shall be construed as excluding or limiting (or seeking to do so) any liability on the part of TVC Soho by reason of death or bodily injury caused by TVC Sohos’ negligence.
10.2.1 Save as otherwise expressly provided in these terms and conditions and to the fullest extent permitted by law, TVC Soho will not be responsible for any damage to or loss of any Customer’s Property held by TVC Soho nor any loss (consequential or otherwise) arising in respect thereof, unless caused by TVC Sohos’ 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 any Customer’s Property caused by TVC Sohos’ negligence during any Booking, TVC Sohos’ liability shall be limited to the cost expended by the Customer in fees and charges charged by TVC Soho in respect of that Booking and in any event shall not exceed £10,000 in respect of any one job subject to paragraph (10.2.3).
10.2.3 If the Customer shall notify TVC Soho prior to the Booking that its Customers Property is valued by the Customer at a sum which exceeds the figure stated in paragraph (10.2.2) and shall agree to reimburse TVC Soho with the cost of effecting special insurance cover for the same during the Booking period in the sum stated by the Customer then TVC Soho shall use its reasonable endeavours as soon as is reasonably practicable to arrange the same and, from the date on which any such insurance is actually effected by TVC Soho, the limitation of liability shall be the sum actually insured 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 TVC Soho will be held by TVC Soho entirely at the risk of the Customer, irrespective of the cause of any loss or damage and the Customer should insure the Customer’s Property to its full value against all risks and take and retain copies of all Customer’s Property before providing the same to TVC Soho.
10.3 TVC Soho 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 While TVC Soho will use its reasonable endeavours to ensure that all Facilities perform in accordance with the specification for the same, unless expressly agreed in writing at the time of the acceptance of the Booking, TVC Soho shall not be responsible for ensuring that the Facilities provided by it are suitable for the Customer’s purpose.
10.4 TVC Soho shall not be liable for any reduction in the quality of its services that may be caused by the quality of the Customer’s Property or TVC Soho adherence to the Customer’s instructions.
10.5 (a) The Customer shall indemnify TVC Soho, its directors, and employees, servants, sub-contractors and agents against all liabilities, actions and losses, claims, proceedings, judgement, damages, obligations, costs and expenses of any nature whatsoever (including, but not limited to, legal fees, costs and expenses) arising directly or indirectly out of TVC Soho provision of goods or services hereunder or in connection with the Customer’s Property or out of the acts or omissions of the Customer, its servants, agents or representatives, or out of any breach by the Customer of any of its representations, warranties or other obligations in these 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). (b) Each of the parties acknowledge and agree that copyright in underlying materials processed by TVC Soho in the performance of its services and / or embodied in the Materials may be owned by third parties and that the use by the Customer of the Materials shall always be subject to the Customer obtaining all and any necessary consents and licences from those third party owners.
11.1 TVC Soho shall be entitled without further notice to the Customer 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 three months from the end of the Booking, and while uncollected by the Customer, such Materials or Customer’s Property shall be held by TVC Soho at the Customer’s risk as stated above.
12. Transfer of Obligations
12.1 TVC Soho 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 TVC Soho and the Customer is personal to the Customer, who shall not assign or charge the benefit thereof without the express prior written consent of TVC Soho.
13.1 The Customer shall ensure that TVC Soho is given screen credits in respect of the Facilities and Materials supplied by TVC Soho in a form approved in advance by TVC Soho.
13.2 The Customer hereby grants to TVC Soho a perpetual and royalty-free licence to refer to the Customer and to use in any medium all or any part of the Materials processed or produced by TVC Soho on the Customers behalf in order to promote or advertise TVC Soho business.
14. Representations and Warranties
14.1 The Customer represents and warrants to TVC Soho that:-
14.1.1 Before the commencement of the Booking period 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 Property; and
14.1.2 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.
15. Force Majeure
15.1 TVC Soho shall not be under any liability to the Customer as a result of TVC Soho 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 If TVC Soho 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 without further liability of any kind to the Customer.
16. Termination by TVC Soho
16.1 TVC Soho shall, without prejudice to any other right or remedy which it may enjoy, be entitled to terminate all of its obligations to the Customer upon the happening of any of the following events:-
16.1.1 If the Customer is at any time in breach of any obligation or representation or warranty to TVC Soho, or any sum owing to TVC Soho by the Customer is overdue by more 14 days; or
16.1.2 If the Customer makes or offers to make any compensation with creditors or enters into a voluntary arrangement or if a bankruptcy petition is served on the Customer or (if the Customer is a limited company) any resolution or petition to wind up the Customer’s business is presented or if a receiver or administrative receiver is appointed to deal with any part of the
Customer’s assets. Upon any such termination, the Customer will pay to TVC Soho on demand all sums owing in respect of services already performed by TVC Soho, together with such sums as are necessary to fully indemnify TVC Soho in respect of all liabilities incurred in consequence of compliance with the Customer’s instructions given prior to such termination.
17.1 All notices given in accordance with these terms and conditions shall be in writing and may be delivered personally or sent by prepaid first class post to the usual or last known address of TVC Soho or the Customer. A notice shall be deemed to have been properly served if personally delivered, at the time of delivery, and if posted, forty-eight hours after posting. In proving service it shall be sufficient to show that the notice was delivered to the correct address or that the envelope containing the notice was properly addressed, pre-paid and posted.
17.2 No variation of these terms and conditions shall be effective unless made in writing and signed by a duly authorised director of TVC Soho and by the Customer.
17.3 If any provision of the terms shall be adjudged by a Court to be void or unenforceable, the same shall in no way affect any other provision of this contract or the validity or enforceability of the contract generally.
17.4 Any failure or delay by TVC Soho in exercising or enforcing any rights conferred by these terms and conditions shall not be deemed to be a waiver thereof or operate so as to bar the exercise or enforcement of such rights at any time.
17.5 The contract between TVC Soho and the Customer shall be governed by and construed in accordance with English law and TVC Soho and the Customer agree that the English Courts shall have jurisdiction to settle any dispute relating thereto.