This agreement has been entered into on the date on which the client accepts these Terms and Conditions.
Application of the terms of this contract
1 Except as agreed otherwise, the terms of this contract apply to all work or projects (each a “Project”) undertaken by Casual Films Inc (“Casual”) for the client, whether in connection with a quotation provided by Casual, or otherwise.
2 For the avoidance of doubt, the terms of this contract apply to arrangements for employees to be embedded within the client’s team, office or operations as well as to discrete Projects.
3 Any quotation issued to the client incorporates the terms of this contract and is (unless stated otherwise) valid for 30 days from the date of issue. Acceptance of our quotation confirms the client’s acceptance of the terms of this contract.
4 The agreement between Casual and the client in relation to each Project commences on the date of acceptance by the client and terminates on completion of the relevant Project, unless otherwise terminated in accordance with the terms of this contract.
Payment, fees and expenses
5 All figures quoted exclude applicable sales tax. 50% of the fees (including applicable sales tax) relating to the Project become due and payable upon acceptance of Casual’s quotation. The client acknowledges that Casual will not proceed with any work (irrespective of any timings set out in the relevant Project Documentation as defined below) until such fees have been received. The remaining 50% of the fees (including applicable sales tax and any applicable expenses to date) relating to the Project become due and payable on completion of the Work in accordance with clause 17 below.
6 Casual reserves the right to charge interest at a rate of 2% per month for all invoices unpaid after the due date for payment. Time for payment shall be of the essence. Payment may be made by BACS or cheque. All cheques must be payable to “Casual Films Inc”.
7 In the absence of any statement, formally agreed in writing between Casual and the client, the fee for staff embedded within the client’s team, office or operations shall be as per our rate card.
8 Unless otherwise stated all travel, accommodation and subsistence will be billed back to the client at cost, with a 20% production fee. Estimates are available on request.
9 Any additional costs incurred by Casual after commencement of the Project as a result of changes to the scope of the Project, delays caused by the client, cancellation of the Project or additional work required over and above that set out in the Project Documentation (as defined below), shall be paid by the client at the rate of the current Rate Card available on request. In the case of third party costs incurred by Casual, Casual reserves the right to charge a 20% margin on top of the cost to Casual.
The scope of the project
10 The scope of the Project, including a Project brief, quotation, plan and schedule as appropriate (together the “Project Documentation”), must be agreed before Casual will commence any work in relation to the Project. Once Casual has commenced work on the Project, reasonable amendments to the Project Documentation requested by the client may be permitted at Casual’s sole discretion.
11 Casual will use its reasonable endeavours to meet the timescales set out in the Project Documentation but the client acknowledges that any such dates are estimates only.
12 Casual reserves the right to refuse to produce or use in relation to any Project any information, content or other material it considers obscene or morally unsuitable or which may breach copyright or other intellectual property rights, or which is libellous, defamatory or otherwise illegal.
The client's obligations
13 The client will make itself and any relevant employees or contractors reasonably available to communicate with Casual and will provide to Casual any material or other information required to complete the Project in accordance with the Project Documentation.
14 The client shall at all times provide appropriate health and safety and security arrangements in relation to a Project, in particular in relation to any filming outside of the United States for which Casual provides crew or equipment. Such arrangements shall be notified to Casual in writing in advance of travel.
15 Because of the nature of Casual’s business, the client may develop a close working relationship with employees and contractors of Casual. The client therefore agrees that, except with the written prior consent of Casual, the client will not, during the term of this agreement and for a period of 6 months following the date of its termination canvass, solicit or approach or cause to be canvassed, solicited or approached for any employment, orders or custom, any person who at any time during the 12 months immediately preceding the receipt date, was an employee or contractor of Casual in relation to a Project. For the avoidance of doubt, this applies to Casual employees embedded in the client’s team, office or operations and Casual employees working on discrete projects.
16 Casual will deliver to the client a draft of the work specified in the Project Documentation (the “Work”). Any issues in relation to the draft Work must be raised in writing with Casual within 7 days of receipt by the client.
17 The Work will be released by Casual to the client in final form and the relevant Project will be deemed completed once the client has paid the applicable fees in full and the client either (i) approves the draft Work in writing as complete and satisfactory; or (ii) has raised no issues in relation to the draft Work within 7 days of delivery to the client. Casual will not be responsible for any errors or other changes in content in relation to any Work after the final Work has been released to the client.
Intellectual Property Rights.
18 All intellectual property rights in materials provided by the client in relation to the Project are owned by the client or its licensors. On completion of the Project and release of the final Work to the client in accordance with clause 17, the client shall own all intellectual property rights in the final Work in the form released to the client and solely for use on the platform(s) or in the format(s) agreed in the Project Documentation (the “Platform”, which term may include without limitation terrestrial, satellite and cable broadcast, cinema distribution, internet distribution, physical media i.e. memory card, DVD, CD, VHS, etc). Unless Casual expressly agree otherwise, the final Work may not be used on Platforms other than those set out in the Project Documentation and we accept no liability for any such use.
19 Except as set out in clauses 18, 20 and 22, all intellectual property rights existing or arising in relation to the Project are owned by Casual including without limitation such rights subsisting in the proposals, creatives, messages, ideas, designs, the Rushes (as defined below), the Project File (being all materials relating to the Project except the final Work and the Rushes as defined below), concepts, drawings, storyboards, layouts, pictures, photographs, videos, music, illustrations and words. Casual does not grant any right or licence, either expressly or by implication, to or for the client or any third party to use any intellectual property rights belonging to Casual or its licensors. Casual does not waive any moral rights in any intellectual property. The use of any aspect of intellectual property, outside the finished Work, must be negotiated separately, and in writing, on a case by case basis.
20 Casual will retain the Rushes containing the raw footage relating to the Project (the “Rushes”) until the end of the month following the month in which the Project was completed, after which date it may delete or dispose of the Rushes at its discretion. In advance of any deletion or disposal, Casual may offer delivery of the Rushes to the client, subject to payment by the client of any associated delivery and other materials costs. Any subsequent use of the Rushes by the client is strictly on a no- liability basis for Casual.
21 Casual will retain the final Work for 12 months after completion and will keep it on a raided server, but without a secondary backup, meaning failure of the server will result in loss of media. Casual cannot and does not guarantee the integrity of the files during the 12 months after the Work’s completion and has no liability in the event that data is permanently lost for any reason after its release to the client. After 12 months Casual may delete or keep the final Work at its discretion but has no responsibility to retain or provide any copies of the final Work in any form after this point.
22 The client agrees that Casual may use the client's name and logo solely to the extent necessary for the purpose of the Project and for Casual’s promotional use (subject to any directions from the client regarding Casual’s use of such name and logo) and shall have the non-exclusive right to use extracts no longer than 4 minutes in length from the final Work for Casual’s own promotional use in presentations and on its website.
23 Nothing in this contract excludes or limits Casual’s liability for death or personal injury arising from Casual’s negligence, or Casual’s fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by law.
24 Casual will not be liable to the client for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising out of or in connection with the following: (i) loss of profits, sales, business or revenue; (ii) loss of agreements or contracts; (iii) business interruption; (iv) loss of anticipated savings; (v) loss of business opportunity, goodwill or reputation; (vi) loss of use or corruption of software, data or information; or (vi) any indirect or consequential loss or damage.
25 Casual shall not be liable to the extent that it is unable to carry out any of its obligations under this contract for any reason beyond its control including (without limiting the foregoing) act of God, legislation, war, drought, failure of power supply, lock-out, strike or other action taken by suppliers or owing to any inability to procure materials required for the performance of its obligations. If such events continue for a period of more than 28 days, the client may, by written notice to Casual, elect to terminate the contract subject to the provisions of clause 30.
26 Subject to clauses 23 to 25, Casual’s total liability to the client in relation to any Project, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this contract shall be limited to the total fees paid by the client in relation to that Project.
27 Any confidential or proprietary information which is provided to Casual by a client or by Casual to a client will be kept confidential and will not be used or disclosed to any person or entity, except to the extent required for the purposes of this contract or when required to do so by law.
28 Casual may terminate this agreement in relation to any Project in the event that the client is in material breach of any of its obligations under the terms of this contract and, where such breach is remediable, it has not been remedied within 30 days of receiving written notice of such breach; or if the client is insolvent or is placed into any kind of administration, liquidation or other insolvency procedure.
29 The client may terminate this agreement in relation to any Project at any time by providing at least 14 days written notice of termination to Casual.
30 In the event of termination of this agreement the client will remain liable to pay in full for all work undertaken and in progress by Casual (including any expenses and third party costs incurred or in respect of which Casual is obliged to pay) up to the date of termination.
31 Should the client have cause to make any complaint about service or the work the complaint, if put in writing, will be acknowledged by Casual Films Inc within 14 days and a detailed reply will be issued to the client within a further 28 days thereafter. Whilst a complaint is being dealt with, all relevant Work together with related invoices and original materials should be returned to Casual.
32 The client acknowledges that Casual may in its sole discretion use contractors for the performance of its obligations under this contract.
33 This contract and the related Project Documentation form the entire agreement between the client and Casual and supersede all prior understandings, agreements, documents and discussions relating to its subject matter. The client confirms that it applies to the exclusion of all other terms including without limitation any terms of business which the client may issue from time to time.
34 No delay by Casual in enforcing any rights under this agreement shall be deemed a waiver of those rights. Any waiver of Casual’s rights is to be given in writing. No waiver by Casual of any breach of this agreement shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
35 As per guidance from our public accountants (informed by guidance provided by the New York State Department of Taxation and Finance), no Sales Tax will be charged on invoices because due
to digital exemption as no physical product will be provided by Casual Films. It is the responsibility of the client to confirm whether Use Tax (or any other tax) is due and to take the appropriate actions to pay this if necessary.
36 These terms shall be governed and construed in accordance with US law. The US Courts have exclusive jurisdiction to settle any dispute or claim arising out of this agreement.