Framestore
CFC Limited
Terms and Conditions of Business |
The
following terms and conditions shall apply in relation to
the supply of any services or goods by The FrameStore Limited
(‘FrameStore’). They supersede all previous conditions
and override any alternative conditions referred to by the
Customer and constitute the entire agreement between FrameStore
and the Customer.
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| 1. Definitions |
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1.1
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Unless
inconsistent with the context, in these terms and conditions:- |
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'Booking'
means the booking period for which Framestore has agreed to
provide the Facilities to the Customer;
'Customer' means the person, firm or company
using the services of Framestore;
'Customer's Property' means any of the Customer's
works, tapes, films or other materials, equipment or other
property which is the subject of the Facilities and is provided
to Framestore;
'Facilities' means the pre/post-production
equipment, personnel, creative and production facilities and
services which Framestore is providing to the Customer in
accordance with these terms and conditions;
'Materials' means all tapes, films or other
materials provided by Framestore pursuant to a booking.
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| 2. Rates
and Fees and Charges |
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2.1 |
The
rates charged at Framestore are those that are published from
time to time in Framestore's rate card. The rates quoted do
not include Value Added Tax, all media stock, courier and
delivery charges, meals and long distance telecommunications
expenses, and any such VAT or external expenses shall be paid
by the Customer.
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2.2 |
Framestore
reserves the right to change the rates quoted in the rate
card at any time without prior notice.
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| 3. Estimates |
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3.1 |
Whilst
all the time and prices estimates given by Framestore are
given in good faith and Framestore will endeavour to adhere
to such estimates, Framestore will not be bound by such estimates
where they are not met due to the Customer's changes or other
circumstances outside Framestore's control and Framestore
will not be liable for any failure to meet such estimates.
Framestore will not be responsible for any costs, charges
or expenses incurred by the Customer as a result of such failure.
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| 4. Payment |
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4.1
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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 Framestore within 30 days of the
date of invoice and Framestore reserves the right to charge
interest on late payment.
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4.2
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All
sums payable by the Customer shall be paid 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. Framestore 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 Framestore.
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4.3
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Framestore
reserves the right to require payment of all fees and charges,
in full or in part, in advance of the Booking period.
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4.4
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Any
queries on the invoice must be raised within 14 days of the
date of the invoice.
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| 5. Cancellation |
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5.1
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In
its absolute discretion, Framestore 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.
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5.2
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In
the event of any such cancellation being permitted or instigated
by Framestore 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 Framestore's rate card current at the
date of cancellation.
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5.3
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In
the event of such cancellation being permitted or instigated
by Framestore between three 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 Framestore's rate card
current at the date of cancellation.
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5.4
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In
addition to the above mentioned cancellation charges, Framestore
will be entitled to be reimbursed with any costs or expenses
which it may have incurred with the knowledge and approval
of the Customer.
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| 6. Lien
and Delivery |
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6.1
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Until
payment in cash or cleared funds of all monies due from the
Customer to Framestore pursuant to a particular booking:-
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6.1.1 |
the physical property in all Materials shall, notwithstanding
delivery, remain vested in Framestore;
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6.1.2
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Framestore
shall have a general lien over any property of the Customer
in Framestore's possession for such monies due: and
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6.1.3
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the
licence granted by Framestore to the Customer pursuant to
clause (8.2) shall not take effect.
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6.2
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Furthermore
, such property shall not give pass to the Customer until
Framestore has also received payment in cash or cleared funds
of all monies due from the Customer to Framestore under any
other bookings or business transaction.
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6.3
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The
Customer hereby grants an irrevocable licence to Framestore
so that it may enter upon any premises where any material
are stored or where they are reasonably thought to be stored,
during normal business hours, and repossess the same.
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6.4
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If
the Customer fails to make payment within 14 days of such
monies becoming due, Framestore 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.
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6.5
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Framestore
will endeavour to deliver any Materials as soon as practicable
after receipt of all sums due to Framestore from the Customer
but Framestore 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 Framestore.
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| 7. Insurance |
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7.1
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Risk
of damage to or loss of the Materials shall pass to the Customer
on delivery, or if the Customer fails to take delivery, when
Framestore tenders delivery.
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7.2 |
The customer acknowledges that it is not possible for Framestore
to obtain insurance against any lost costs of production arising
from loss or damage to the customer's property.
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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 on loss or damage to
the customer's property (and its content) whilst under the
custody or control of Framestore.
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| 8. Intellectual
Property in Materials |
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8.1
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All
Copyright in any recordings or other works resulting from
the provision of the Facilities and/or embodied in any materials
shall vested in, and be exclusive property of, Framestore.
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8.2
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Subject
to Framestore having received payment in cash or cleared funds
of all monies due from the customer to Framestore pursuant
to a particular booking. Framestore grants the customer an
exclusive licence to publish and transmit the finished product
of the provision of the facilities as a whole in its final
form as supplied by Framestore for the purpose originally
contemplated.
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8.3
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The
customer shall have no rights whatsoever (and undertakes
not) to use any Material or intellectual property rights
of any type whatsoever contained in them separately from
the finished product of the provision of the facilities
as a whole or for any other purpose whatsoever.
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8.4 |
Notwithstanding
anything to the contrary contained herein, Contractor shall
retain ownership and possession of, and shall not be required
to deliver to Producer, any mechanical devices, processes,
contractor’s know how, source or object code or application
software which are used as tools to create the Work ("Contractor
Technology"). Contractor Technology shall not
include any visual images or photography from or relating
to the Picture and, for the avoidance of doubt, Contractor
shall have no right, title or interest in any such images
or photography. Contractor 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, Contractor hereby grants to
Producer a non-exclusive licence in and to the Contractor
Technology in perpetuity, to the extent only that the same
is necessary for the full exploitation of the Picture and
all ancillary and allied rights therein and thereto by Producer
as envisaged by the parties hereunder.
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| 9. Confidential
Information |
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9.1
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The
customer shall take proper steps to keep confidential all
confidential information relating to Framestore or its business
or financial affairs or the Facilities or other services provided
by it, including any computer programs, production techniques,
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')
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9.2
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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 Framestore any confidential information (without retaining
copies thereof) and any equipment or other provided by Framestore
(other than, for the avoidance of doubt, the Materials).
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| 10. Framestore's
Liability |
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10.1
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Save
as otherwise expressly provided in these terms and conditions
and to the fullest extent permitted by law:
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10.1.1 |
The supply to any customer of Materials and facilities are
entirely at the customer's risk and Framestore 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;
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10.1.2 |
If the use of the facilities for the booking is delayed, postponed,
curtailed or cancelled for any reason affecting Framestore
,then unless such delay, postponement, curtailment or cancelled
for any reason affecting Framestore, then unless such delay,
postponement, curtailment or cancellation shall have been
caused by the gross negligence of Framestore, Framestore shall
not be liable for any loss or damage suffered by the customer
by reason thereof;
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10.1.3 |
Framestore 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
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10.1.4 |
All
warranties, conditions, terms and representations relating
to goods or services supplied by Framestore (whether expressly
or implied by statue, common law, use or otherwise) are hereby
excluded.
Nothing herein shall be construed as excluding or limiting
(or seeking to do so) any liability on the part of Framestore
by reason of death or bodily injury caused by Framestore's
negligence.
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10.2
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10.2.1 |
Save
as otherwise expressly provided in these terms and conditions
and to the fullest extent permitted by law, Framestore will
not be responsible for any damage to or loss of any customer's
property held by Framestore nor any loss(consequential or
otherwise) arising in respect thereof, unless caused by Framestore
's negligence in which case paragraphs (10.2.2) and (10.2.3)
shall apply;
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10.2.2 |
In
the event of loss or damage to the customer's property caused
by Framestore's negligence during the booking period Framestore's
liability shall be limited to the cost expended by the customer
in fees and charges charged by Framestore and shall not exceed
£50,000 in respect of any one job subject to a paragraph.
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10.2.3 |
If
the customer shall notify Framestore during the Booking
period is valued by the customer at a stated sum which exceeds
the figure seated in paragraph (10.2.2) and shall agree
to reimburse Framestore with the cost of effecting special
insurance cover for such recording during such period in
the sum stated by the customer in such notice ,the limitation
of liability shall be the sum by the customer and the figure
in paragraph (10.2.2) shall not apply.
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10.2.4 |
Subject
to the above provisions of this paragraph (10.2),all of the
customer's property and all Materials held by Framestore will
be held by Framestore 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 them to Framestore.
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10.3
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Framestore
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
and while Framestore will use its best endeavours to ensure
that all equipment and facilities perform in accordance with
the specification for such equipment and facilities unless
expressly agreed in writing at the time of the acceptance
of the booking, Framestore shall not be responsible for ensuring
that its equipment and the facilities provided by it are suitable
for the customer's purpose.
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10.4
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Framestore
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 Framestore's adherence to the customer's instructions.
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10.5
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The
customer shall indemnify Framestore, its directors, and employees,
servants, sub-contractors and agents all liabilities, actions
and losses, claim, proceedings, judgement, damages, obligations,
costs and expenses of any nature what- so ever (including,
but not limited to, legal fees, costs and expenses) arising
directly or indirectly out of or in connection with the customer's
property or the acts or omissions of the customer, its servants,
agents or representatives, or any breach by the customer of
any of its representations, warranties 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).
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| 11. Non-Collection
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11.1
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Framestore
shall be entitled 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 six months from the end of the booking period, and while
uncollected by the customer, such materials or customer's
property shall beheld by Framestore at the customer's risk
as stated above.
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| 12.Transfer
of Obligations |
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12.1
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Framestore
reserves the right to assign or sub-contract all or any part
of its obligations to the customer.
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12.2
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Any
contract which is made between Framestore and the customer
is personal to the customer, who shall not assign or charge
the benefit thereof without the express prior written consent
of Framestore.
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| 13. Credits |
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13.1
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The
Customer shall ensure that Framestore is given screen credits
in respect of the facilities supplied by Framestore in a form
approved in advance by Framestore. The customer hereby grants
Framestore the right to refer in its advertising or promotional
material to the customer and to use the material or the title
of any project or any work completed by Framestore for the
customer in any such advertising or promotional material.
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| 14. Representations
and Warranties |
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The customer represents and warrants to Framestore that:- |
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14.1
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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
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14.2
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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.
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| 15. Force
Majeure |
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15.1
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Framestore
shall not be under any liability to the customer as a result
of Framestore 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, and if Framestore
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 liability.
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| 16. Termination
by Framestore |
Framestore
shall, without prejudice to any other right or remedy which
it may have, be entitled to terminate all of its obligations
to the customer upon the happening of any of the following
events:-
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16.1
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If
the customer is at any time in breach of any obligation or
representation or warranty to Framestore, or any sum owing
to Framestore by the customer is overdue by more 14 days;
or
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16.2
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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
Framestore on demand all sums owing in respect of services
already performed by Framestore, together with relating to
instructions given by the customer before termination. So
as to fully indemnify Framestore in respect of all liabilities
incurred in consequence of compliance with the customer's
instructions.
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| 17. General |
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17.1
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All
notices given in accordance with these terms and conditions
shall be in writing and may be delivered personally or sent
by pre-paid first class post to the usual or last known address
of Framestore 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 providing 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.
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17.2
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No
variation of these terms and conditions shall be effective
unless made in writing and signed by a duly authorised director
of Framestore and the Customer.
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17.3
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The
invalidity of any of these terms and conditions shall not
affect the continuing enforceability of the remaining terms
and conditions.
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17.4
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Any
failure or delay by Framestore 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.
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17.5
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The
contract between Framestore and the Customer shall be governed
by and construed in accordance with English law and Framestore
and the Customer agrees for the exclusive benefit of the Framestore
that the English Courts shall have jurisdiction to settle
any dispute relating thereto.
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