ITCH MEDIA LIMITED: TERMS AND CONDITIONS

1. INTERPRETATION

The following definitions and rules of interpretation apply in these Conditions.

1.1  Definitions:

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Charges: the charges payable by the Customer for the supply of the Services in accordance with Clause 5.

Commencement Date: has the meaning given in Clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with Clause 11.5.

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.

Customer: the person or firm who purchases Services from the Supplier.

Customer Default: has the meaning set out in Clause 4.2.

Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications.

Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the 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: the Customer’s order for Services as set out the Customer’s written acceptance of a quotation by the Supplier, or overleaf, as the case may be.

Production Start Date: the date which the Supplier will begin production work for the Customer, as notified to the Customer, by the Supplier, in advance.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.

Specification: the description or specification of the Services provided by the Supplier to the Customer.

Supplier: Itch Media Limited registered in England and Wales with company number 08754090.

Supplier Materials: has the meaning set out in Clause 4.1(h).

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

1.2  Interpretation:

(a)  A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

(b)  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.

(c)  A reference to writing or written includes fax and email.

2. BASIS OF CONTRACT

2.1  The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2  The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.3  Any samples, drawings, storyboards, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s 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 or have any contractual force.

2.4  These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.5  Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

3. SUPPLY OF SERVICES

3.1  The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.  The Supplier cannot be held liable to any party for any errors delivered after the Customer has confirmed in writing that the Deliverables are accurate and correct and should be posted, published or broadcast.  Amendments to the Specification can be requested via email to the Supplier, such requests only being valid once acknowledged by the Supplier in writing.

3.2  The Supplier shall use all reasonable endeavours to meet any performance dates specified by the Customer in writing (in advance) but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.  The Customer must make themselves available to the Supplier, upon demand and on short notice, so as to assist the Supplier in endeavouring to meet any performance dates.

3.3  The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.4 The Supplier reserves the right to refuse to use, publish, broadcast or otherwise any content or information which it considers (in its absolute discretion) to be obscene or unsuitable.

3.5  The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

4. CUSTOMER’S OBLIGATIONS

4.1  The Customer shall:

(a)  ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;

(b)  co-operate with the Supplier in all matters relating to the Services;

(c)  provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;

(d)  promptly provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(e)  prepare the Customer’s premises for the supply of the Services (where applicable);

(f) be solely responsible for providing the Supplier with all necessary instructions and support concerning the Oder and Specification.  The Customer acknowledges that their knowledge and insight in relation to the Services are vital and the Supplier shall not be held responsible for any shortcomings in such information.

(g)  obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(h)  comply with all applicable laws, including health and safety laws;

(i)  keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and

(j)  comply with any additional obligations as set out in the Specification.

4.2  If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a)  without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

(b)  the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Clause 4.2; and

(c)  the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

5. CHARGES AND PAYMENT

5.1  The Charges for the Services shall be calculated on a time and materials basis:

(a)  the Charges shall be calculated in accordance with the Supplier’s Order;

(b) the Supplier’s daily fee rates are £800 + VAT (Daily Fee Rate);

(c)  the Supplier shall be entitled to charge the Daily Fee Rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the Services originally specified in the Specification (including, by way of example only, additional amendments) and/or where the Order is not completed within 30 days of the Commencement Date where such delay is caused (in whole or in part) directly by the Customer’s inaction in completing the Services; and

(d)  the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.

5.2  The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.

5.3  The Supplier shall invoice the Customer [on completion of the Services OR [weekly/monthly] in arrears].

5.4  The Customer shall pay each invoice submitted by the Supplier:

1. (a) within 30 days of the date of the invoice; and

1. (b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and

1. (c) time for payment shall be of the essence of the Contract.

5.5  The Deliverables will be transferred from the Supplier to the Customer upon payment of the final invoice in full and cleared funds to a bank account nominated in writing by the Supplier.

5.6  All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

5.7  If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under Clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.7 will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%.

5.8  All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6. INTELLECTUAL PROPERTY RIGHTS

6.1  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 the Customer) shall be owned by the Supplier until transfer of the Deliverables is completed, at which point all Intellectual property Rights will transfer to the Customer, notwithstanding that the Customer grants to the Supplier or shall procure the direct grant to the Supplier of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables for the purpose of receiving and using the Services and the Deliverables in its business for (including but not limited to) the purposes of promotional use, internal/client/prospective client presentations or showreels and on the Suppliers’ website or other marketing medium.  All reasonable rights of publicity are reserved by the Supplier.

6.2  The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

6.3  The ideas and concepts put forward by the Supplier as part of the Services but rejected by the Customer shall be Confidential Information of the Supplier and subject to Clause 11.3 below.

6.4  The Supplier will not provide source files unless requested by the Customer in writing before commencement of production.

6.5  The ideas and concepts put forward by the Supplier as part of the Services but rejected by the Customer shall be confidential information of the Supplier and subject to Clause 11.3 below.

6.6  The Supplier will not provide source files unless requested by the Customer in writing before commencement of production.

7. DATA PROTECTION

7.1  Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this Clause 7, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.

7.2  The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.

7.3  Without prejudice to the generality of Clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.

8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

8.1  The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.

8.2  The restrictions on liability in this Clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.3  Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

8.4  Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:

(a)  death or personal injury caused by negligence;

(b)  fraud or fraudulent misrepresentation; and

(c)  breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

8.5  Subject to Clause 8.4, the Supplier’s total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed all sums paid by the Customer and all sums payable under the Contract in respect of goods and services actually supplied by the Supplier, whether or not invoiced to the Customer.

8.6  The terms implied by section 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

8.7  This Clause 8 shall survive termination of the Contract.

9. TERMINATION

9.1  Without affecting any other right or remedy available to it, either party may terminate the Contract in writing no later than 14 days prior to the production Start Date, without penalty.  Where the Customer terminates thereafter, but prior to the Production Start Date, the following charges will be payable to the Supplier by the Customer: –

1. a) 13-8 calendar days before the Production Start Date – 50% of the Order total;
2. b) 7-4 calendar days before the Production Start Date – 60% of the Order total;
3. c) 3 or less calendar days before the Production Start Date – 75% of the Order total.

9.2  Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a)  the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

(b)  the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

(c)  the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)  the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.3  Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a)  the Customer fails to pay any amount due under the Contract on the due date for payment;

(b)  there is a change of control of the Customer.

9.4  Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in Clause 9.2(b) to Clause 9.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

10. CONSEQUENCES OF TERMINATION

10.1  On termination of the Contract:

(a)  the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

1. (d) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

10.2  Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

10.3  Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

11. GENERAL

11.1  Force majeure. The Supplier shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

11.2  Assignment and other dealings.

1. (a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b)  The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

11.3  Confidentiality.

(a)  Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 11.3(b).

(b)  Each party may disclose the other party’s confidential information:

(i)  to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 11.3; and

(ii)  as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c)  Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

11.4  Entire agreement.

(a)  The Contract 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.

1. (b) Each party acknowledges that in entering into the Contract it does not rely on, and 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 Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

11.5  Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.6  Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

11.7  Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause 11.7 shall not affect the validity and enforceability of the rest of the Contract.

11.8  Notices.

(a)  Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid 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 sent by email to the address specified in the written quotation.

(b)  Any notice shall be deemed to have been received:

(i)  if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and

(ii)  if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and

(iii)  if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 11.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(c)  This Clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

11.9  Third party rights.

Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

11.10  Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

11.11  Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

12: Covid Event.

12.1. Covid Event means any circumstance not within the Supplier’s reasonable control relating to the health, social and economic emergency resulting from coronavirus, including without limitation:

12.1.1 the infection or suspected infection of the Supplier’s staff or subcontractors or subcontractors’ staff;

12.1.2 any restrictions on the number of people able to perform the Services in accordance with any applicable laws or regulations;

12.1.3 any other restrictions placed on the Supplier, subcontractors or their staff in accordance with any applicable laws or regulations.

12.2 Provided it has complied with clause 12.3, if the Supplier is prevented, hindered or delayed in or from performing any of its obligations under this agreement by as a result of a Covid Event, the Supplier shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

12.3 The Supplier shall:

12.3.1 as soon as reasonably practicable after the start of the Covid Event, notify the Customer of the Covid Event and the effect of the Covid Event on its ability to perform any of its obligations under the agreement; and

12.3.2 use all reasonable endeavours to mitigate the effect of the Covid Event on the performance of its obligations.

12.4 If, as a result of the Covid Event, the number of crew able to perform the Services is limited, but in the reasonable opinion of the Supplier, the Services can be performed with such limited number of crew, then the Supplier shall continue to perform the Services and there shall be no change to the fee unless otherwise agreed by the parties.

12.5 If, as a result of the Covid Event, the Services have to be delayed, the provision of the Services will be postponed for 3 weeks (or such other time as the parties agree) and the Customer will pay all reasonable pre-production costs and any costs which have been incurred by the Supplier up to the point of delay and the Customer will re-imburse the Supplier for any additional costs incurred, for example in respect of re-booking any accommodation or travel.

12.6 If the Covid Event prevents, hinders or delays the Supplier’s performance of its obligations for a continuous period of more than 6 weeks, the  Customer may cancel the order in respect of the Services and the Customer will pay all reasonable costs incurred by the Supplier, including without limitation:

12.6.1 all pre-production costs;

12.6.2 any costs related to DOP; and filming crew

12.6.3 any accommodation / travel costs.

12.6.4 any location costs

12.6.5 any crew/resource costs

12.6.6 any talent costs

‍