INTRODUCTION

Straw and Co UK Limited (company number 11651429) whose registered office is at 2, Clos Y Ceiliog, Llandre, Bow Street, United Kingdom, SY24 5AN (Straw and Co UK) provides video, photo, content and production and strategic and activation services for branded content.

These Terms & Conditions govern the supply of the Services to the Client identified in the Statement of Work.

1. Terms and Definitions (photography):


(a) picture includes a photograph, images, transparency, negative, digital scan, design, artwork, painting, montage drawing, engraving or any other item which may be offered for the purposes of reproduction;

(b) reproduction includes any form of publication or copying of the whole or part of any picture and whether or not altered by printing, photography, slide projection (whether or not to an audience) xerography, artist’s reference, artist’s illustration, layout or presentation, electronic or mechanical reproduction or storage by any other means;

(c) the Photographer (otherwise known as Mike Straw) is the Author of the photograph or the Photographer.

(d) the Client is the person or organisation to whom the invoice is addressed (whether or not the Client is acting for a third party);

(e) The Media Straw Images administers the licensing of the works of the Photographer, Michael straw ta The Media Straw and is a trading name of The Media Straw IT Ltd. a company registered in England;

(f) These terms and conditions represent the entirety of the agreement between The Media Straw Images and the Client. Any variation is only applicable when agreed in advance and in writing;

2. Copyright and Ownership of Materials:
(a) The entire copyright in the pictures is retained by the Photographer, Michael straw ta The Media Straw at all times throughout the world and is administered by The Media Straw Images;

(b) Title to all photographs remains the property of the Photographer;

(c) Images will be licensed for use for a specified period. When the License to Use has expired, the images should be returned to the Photographer and a written undertaking was given that all digital files have been destroyed. The Client is expected to comply with this requirement within 30 days of the expiration of the License to Use. The Photographer reserves the right to make an additional charge for continued use after this period;

(d) The Photographer, as administered by The Media Straw Images, supplies the technical and artistic ability to illustrate an idea photographically, and sells the right to reproduce those pictures in a given context. No property or copyright in any pictures shall pass to the Client whether on its submission or on The Media Straw Images’ grant of reproduction rights in respect thereof;

(e) Michael straw ta The Media Straw asserts both his moral right to be identified as the author of his work and the right to a credit is asserted in accordance with sections 77 and 78 of Copyright, Designs and Patents Act 1988;

(f) Unless otherwise agreed in writing if any picture reproduced by the Client omits the copyright notice or credit line specified by The Media Straw Images any fee payable by the Client shall be subject to an increase specified by The Media Straw Images, and in any event an increase of not less than 25%.

3. Use and Reproduction:
(a) The License to Use only comes into effect once full payment of the invoice has been made. No use may be made of the images until full and final payment – including any late payment charges that may have been levied – has been received by The Media Straw Images;

(b) Permission in writing may be granted for image use before payment, however this permission will be immediately revoked if payment of the invoice is not made by the timescale stated on the invoice;

(c) Reproduction rights (if and when granted) are strictly limited to the use and period of time specified on The Media Straw Images’ invoice. An agreement must be reached with The Media Straw Images before the pictures are used for a different purpose or after the licence to use has expired;

(d) Reproduction rights are not issued exclusively to the Client except when specified on the invoice;

(e) Reproduction rights granted are personal to the Client and may not be assigned, nor may any picture submitted to the Client be loaned or transferred to third parties save for the purpose of the exercise by the Client of such reproduction rights;

(f) Any reproduction rights granted are by way of licence and no partial or other assignments of copyright shall be implied;

(g) The Media Straw Images reserves the right to refuse to supply or grant a reproduction licence to a third party when requested to do so by the Client;

(h) In the case of printed publications, three copies of the relevant pages containing any picture supplied are to be furnished to The Media Straw Images free of charge within two weeks. In other media, evidence of use must be made available if requested;

(i) On the Client’s death or bankruptcy or (if the Client is a company) in the event of a Resolution, Petition or Order for winding up being made against it, or if a Receiver is appointed, The Media Straw Images may at any time thereafter inspect any records, accounts and books relating to the reproduction of its pictures to ensure that the pictures are being used only in accordance with the reproduction rights granted to the Client.

4. Definitions of Reproduction Rights:
The following terms are used when describing the reproduction rights granted by The Media Straw Images and the Photographer to the Client:

(a) Internal Use only: The right to use the pictures only within a company for non-commercial purposes; publication in a free in-house magazine not normally available to the public; exhibition within the Client’s premises; editorial use in the Client’s intranet site;

(b) PR and Press distribution: The right to use the pictures as described in 4(a); plus a licence for third parties to reproduce such pictures in print or electronic media in an editorial context where no fee has been paid to guarantee publication;

(c) Specified Use Only: The right to use the pictures once only for the purpose as described on the invoice;

(d) Editorial: One reproduction only of pictures supplied within one print edition of the specified title in an editorial context only.

5. Booking and Cancellation:
(a) The Client will be required to complete a Booking Form, on receipt of the booking form, The Media Straw Images will send an email as confirmation. The booking will then be considered Confirmed.

(b) Once the Client has made a booking for a specific time and date and this date/time has been Confirmed, The Media Straw Images will not accept any other work from other clients for those times and dates;

(c) As a result, once a booking is Confirmed, if it is subsequently cancelled, a cancellation fee will be charged to the client according to the following schedule: (i) When a client cancels a confirmed booking within 10 business days of any confirmed date, an administration fee of £20.00 (Excl. VAT) will be charged; (ii) When a client cancels photography within less than 10 days business of any confirmed date, a fee of 22% of the booked time rate will be charged. (iii) In addition to this cancellation fee, the client will be charged for any expenses already incurred by The Media Straw Images.

6. Payment Terms:
(a) Our payment terms are strictly net 28 days (four weeks) unless agreed in advance and in writing;

(b) If payment is not made in accordance with (a) above then The Media Straw Images may rescind any Agreement and recover damages, or, at its option, may exercise its statutory right to interest under the Late Payment Of Commercial Debts (Interest) Act 1998;

(c) A fee of £19 (excluding VAT) will be made for each account reminder, duplicate invoice, or any other paperwork, correspondence or phone calls involved with the pursuance of a debt. This fee is non-refundable, and represents the additional time spent pursuing overdue invoices;

(d) The Client’s right to reproduce a picture arises only when The Media Straw Images’ invoice relating to the grant of such right is fully paid (including interest charges levied on late payment of the invoice or invoices). Any reproduction before payment of the invoice constitutes an infringement of rights and a breach of this Agreement entitling The Media Straw Images to rescind the Agreement and rendering the Client liable for the payment of damages;

(e) If any invoice issued to the Client is not paid by the Due Date, then all unpaid invoices issued to the Client become due of immediate effect, even if it is less than 28 days from the issue date, and that The Media Straw Images may consider these invoices as overdue when pursuing legal action for the recovery of said debts;

7. Rejection:
(a) The Media Straw Images will edit every take and deliver what it considers to be the best of every situation covered;

(b) Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of style, composition or editing.

8. Liability and Indemnity:
(a) While The Media Straw Images takes all reasonable care in the performance of this agreement generally, it shall not be liable for any loss or damage suffered by the Client of by any third party arising from use or reproduction of any picture or its caption;

(b) The Client agrees to indemnify The Media Straw Images in respect of any claims or damages or any costs arising in any manner from the reproduction without proper reproduction rights of any picture supplied to the Client by The Media Straw Images;

(c) It is the Client who must satisfy himself that all necessary rights, model releases or consents which may be required for reproduction, are obtained and it is acknowledged that The Media Straw Images gives no warranty or undertaking that any such rights, model releases or consents have or will be obtained whether in relation to the use of names, people, trade marks, registered or copyright designs or works of art depicted in any picture. In the event that the picture is issued or reproduced by or with the authority of the Client then the Client shall indemnify The Media Straw Images against any loss or damage, proceedings or costs where such rights, releases or consents have not been obtained.

9. Applicable Law:
(a) This Agreement shall be subject to and constructed according to English Law and the parties agree to accept the exclusive direction of the Courts of England;

(b) No variation of terms and conditions set out herein shall be effective unless agreed in writing by both parties.

(c) Email communication constitutes a contract in law, unless the Client specifically states they will not accept this and instead provides hardcopy paperwork of all relevant agreements and contracts.

10. Client Confidentiality:
The Photographer and The Media Straw Images will keep confidential and will not disclose to any third parties or make use of information communicated to them in confidence for the purposes of the photography, save as may be reasonably necessary to enable the Photographer or The Media Straw Images to carry out their obligations in relation to the commission.

Making Payment
Our terms are strictly net 28 days (four weeks) unless agreed in advance and in writing.

Payment by BACS is preferred and bank details will be provided on our invoice. We also accept payment by cheque and crossed cheques should be made payable to “The Media Straw IT Ltd.”. Please note, when making payment by cheque, proof of postage of remittances is not considered proof of receipt, and clients are advised to send payment by any method affording proof of delivery.


AGREED TERMS (Production)

1. Definitions and Interpretation

1.1 The following definitions and rules of interpretation apply in the Agreement, as well as those terms defined in the Statement of Work.

Acceptance Date: the date on which the Client notifies Straw and Co in accordance with the terms of the Agreement that it accepts, as satisfactory, the Deliverables.

Agreement: the production agreement between Straw and Co and the Client for the supply of the Services by Straw and Co to the Client, made in accordance with clause 2.1 and incorporating the Statement of Work and these Terms.

Applications: the application(s) for the production and/or the Deliverables (if applicable), detailed in the Statement of Work.

Archive Fee: shall be the fee set out in the Statement of Work in respect of archive services for the final Video and Edit Files.

Brief: the completed production brief, that is attached to the Statement of Work.

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

Client: the client identified in the Statement of Work.

Client Representative: shall be as defined in clause 5.2.

Confidential Information: proprietary information or information of commercial value, in whatever form or medium, which has been kept confidential by the party from whom the information originates, including information relating to the party’s business operations, strategies, pricing, marketing and information relating to the methodologies used to create the Deliverables or any of their constituent parts, commercial or technical know-how, any and all of the foregoing information pertaining to either party’s clients and suppliers.

Costs: the costs and expenses, including any Third-Party Materials costs (if known) detailed in the Statement of Work.

Deliverables: any deliverables described in the Statement of Work, but excluding the Edit Files.

Edit Files: the files which are created by Straw and Co after the rushes phase and before the final production of the Video, which can show or from which can be deduced the highly skilled editing processes and methodologies used by Straw and Co to create the production.

Input Materials: all Client acceptances or approvals, scripts, footage, documents, branding images and materials, images and materials, performances and services to be provided by the Client, or on its behalf (including by talent, contributors, consultants or freelancers procured by the Client) to Straw and Co relating to the Services and Deliverables, as specified in the Statement of Work or as otherwise agreed by the parties from time to time, including the Client’s name and any Client branding provided by the Client to Straw and Co.

Intellectual Property Rights: all copyright, neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, format rights, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights 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 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.

Key Creative Parameters: those key creative parameters for the production, set out in the Statement of Work.

Key Personnel: those persons listed in the Statement of Work who will provide the services for the production of the video, which may include presenters or actors appearing in or providing voice-over contributions to the Video, the director, individual producer, lead photographer or cameraman, and editor.

Payment Schedule: the schedule of payments set out in the Statement of Work.

Pre-Production Pack: the pack of materials prepared by Straw and Co and delivered or presented by Straw and Co to the Client before the Shoot Date which details amongst others, the cast members, location(s), props, costumes, scripts and a detailed breakdown of the Services for the Shoot Date.

Pre-Production Meeting: the meeting where the Pre-Production Pack is presented or made available to the Client or a representative of the Client.

Production Schedule: the agreed dates, times and locations for the preparation, production and post-production of the production during the Term, as attached to the Statement of Work.

Response to Brief: any response to the Brief prepared by Straw and Co and attached to the Statement of Work.

Services: the work to be provided by Straw and Co as described in the Statement of Work, which includes the creation of the Deliverables.

Shoot Date: the date specified for such in the Production Schedule.

Statement of Work: the statement of work provided by Straw and Co to the Client, once signed by an authorised representative of the Client and Straw and Co, which includes the Brief, the Response to Brief, the Production Schedule and the Costs.

Term: the period from the date of the Agreement until the Acceptance Date or (if earlier) termination of the Agreement.

Terms: these terms & conditions.

Third Party Materials: those materials identified as such in the Statement of Work, which is owned or licensed by a third party and used in connection with the Deliverables.

Video: the video to be produced by Straw and Co as provided for in the Statement of Work including all rushes (being the entire footage from any Shoot Date).

1.2 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.



2. BASIS OF AGREEMENT

2.1 Once a quote is agreed, it shall be incorporated into a Statement of Work which shall be signed by both parties. Once a Statement of Work is signed by both the Client and Straw and Co, this creates a legally binding Agreement between the Client and Straw and Co.

2.2 For the avoidance of doubt, these Terms shall apply to and be incorporated into the Agreement.

2.3 These Terms shall prevail over and take the place of any other terms or conditions stipulated, endorsed upon, delivered with, incorporated, referred to or contained in any document of or communication from the Client, including a purchase order from the Client or which are implied by trade, custom or course of dealing.

2.4 If there are any conflicts or inconsistencies between these Terms and the Statement of Work, the terms of the Statement of Work shall apply.



3. COMMENCEMENT AND DURATION

Provided the Client is able to return the signed Statement of Work by the date specified in the Statement of Work, the Services shall be provided by Straw and Co from the date specified in the Production Schedule and shall continue for the Term.



4. ENGAGEMENT

In consideration of payment to Straw and Co of the Costs, Straw and Co shall provide the Services, including production of the Deliverables, using the Key Personnel (to the extent Straw and Co can reasonably make them available) and in accordance with the terms of the Statement of Work.



5. CREATIVE CONTROL AND PRODUCTION PROCESS

5.1 The parties agree to meet from time to time as agreed between the parties to consult in good faith with each other over the editorial content and artistic direction of the production. The production will be created in accordance with the Statement of Work, including the Key Creative Parameters, provided that the Client shall, in its absolute discretion but with full discussion with Straw and Co and giving good faith consideration to Straw and Co’s views as a professional and experienced production company, have final editorial and artistic control over the production.

5.2 At various stages, as are outlined in the Statement of Work, the scripts, voices, storyboards, design and music (as applicable) for the production will be submitted to the Client for acceptance. The Client shall appoint a representative (Client Representative) who shall be authorised, on behalf of the Client, to provide its input, including acceptance required, in respect of such materials. The Client Representative shall include feedback from all key stakeholders within the Client at each stage of acceptance detailed in this clause 5including any key stakeholders named in the SOW. The Client Representative shall ensure that all feedback in respect of the materials shall be iterative, and in particular the feedback in the second, third or final round of amendments referred to in clause 3shall not include new feedback or changes which have not been included in earlier feedback iterations. The Client shall not without good cause reject any of elements delivered by Straw and Co for acceptance.The Client shall act promptly and in good faith when considering the elements delivered for acceptance.

5.3 The Client agrees that following submission of each material in accordance with clause 2, it shall promptly communicate its acceptance (or otherwise) of such material to Straw and Co. If the Client is not satisfied with any such materials it shall notify Straw and Co within the timelines set out in the Production Schedule, providing reasonable and appropriate comments or requesting changes, in accordance with the scope of work set out in the Statement of Work and the Key Creative Parameters. The Costs include up to three rounds of amends plus one round for acceptance, all in line with the Brief and the Key Creative Parameters set out in the Statement of Work. Straw and Co will work in line with the Production Schedule to make all necessary changes, in consultation with the Client. Straw and Co will then re-submit to the Client the revised materials or replaced materials and the provisions of this clause 5.3 will apply again, until the Client has reached the maximum amount of amendments it is entitled to under this clause 5.3 or it has accepted the materials. If Straw and Co does not receive notice of acceptance or otherwise within the period provided for in the Production Schedule, the Client will be deemed to have accepted such material.Notwithstanding the above, Straw and Co shall provide the Pre-Production Pack to the Client at the Pre-Production Meeting before the Shoot Date.  Provided the Deliverables materially comply with the Pre-Production Pack, the Client shall not be able to reject the Deliverables.

5.4 The Client shall be responsible for any additional costs reasonable incurred by Straw and Co arising from: (i) any requests to make any amendments in addition to those provided for in clause 3; (ii) work that falls outside the scope of the Statement of Work: (iii) changes to already accepted materials, work and/or changes to Deliverables which materially comply with the Pre-Production Pack and/or changes which were not communicated in the Pre-Production Meeting; (iv) any costs arising from its delay in acting in accordance with the Production Schedule; and (v) any increases in Costs necessitated as a result of the Client’s requests; (vi) the Client failing to comply with the Client obligations set out in clause 6.2; and (vii) changes or feedback at the approvals stages in clause 5.3 which are not iterative as per clause 5.2. Straw and Co shall advise the Client that additional costs are likely to be incurred, so far as possible, before they are incurred.  Notwithstanding this, Straw and Co shall raise an invoice for such costs at any time, and the Client shall be responsible for payment of the invoice within 30 days of receipt.

5.5 In the event of delay in the provision of the Input Materials and/or failure of the Client to comply with its obligations under clause 6.2, Straw and Co shall, without limitation to its other rights and remedies under this Agreement be entitled to delay the performance of the Services by a reasonable period.

5.6 The Client Representative shall also have the opportunity to accept, or refuse to accept, the production at rough-cut and final cut stage if the production fails to materially comply with the Pre-Production Pack.  The production shall be supplied on hard drive or uploaded onto a server for online review at Straw and Co’s cost. Subject to dates being agreed in advance, the Client shall be entitled to request within the Production Schedule, reasonable amendments to ensure the production is in line with the Statement of Work and the Pre-Production Pack, which shall be undertaken by Straw and Co at its own cost. If the Client does not request amendments within 10 Business Days of the making available of the production to the Client, acceptance of the production shall be deemed granted, and the Client shall not be entitled to reject or dispute any proper invoice issued in respect of the Costs of the production.



6. OBLIGATIONS

6.1 Straw and Co agrees that:

6.1.1 the Services shall be performed by a sufficient number of competent persons with the appropriate skills, qualifications and experience as is necessary for the proper performance of the Services;

6.1.2 it shall perform the Services in co-operation with the Client via the Client Representative and where requested by the Client, its other professional advisors and service providers such as the Client’s PR or advertising agency;

6.1.3 it shall maintain throughout the Term: (a) policy of public liability insurance with £5 Million pounds cover per claim, or series of related claims; and (b) professional indemnity insurance with £10 Million pounds cover per claim or series of related claims; and

6.1.4 for the avoidance of doubt, it shall be responsible for the payment of all Third Party Materials and goods and services commissioned by Straw and Co to perform the Services, as noted in the Statement of Work, and the Client shall have no liability in respect of such costs, other than to pay the Costs in accordance with clause 7.

6.2 The Client agrees that:

6.2.1 it shall provide its acceptance of the Deliverables and the Services promptly and reasonably as detailed in clause 5 and the Production Schedule;

6.2.2 it shall provide the Input Materials in accordance with the SOW and Production Schedule at no cost to Straw and Co, and that the Input Materials shall be comprehensive, up to date and suitable for the purpose;

6.2.3 it shall provide access to premises and facilities so far as this is reasonably necessary and provided that Straw and Co shall, and shall procure that all its employees and contractors shall, comply with any health and safety policies in place at the Client’s premises;

6.2.4 where necessary and agreed, the Client’s shall provide such personnel and instruct such personnel to assist and support Straw and Co wherever possible and comply with Straw and Co’s reasonable requests in making the production, and in particular to provide such information as Straw and Co may request to perform the Services;

6.2.5 it shall procure that the Client Representative shall be available to provide hands-on assistance during filming.



7. FEES AND PAYMENT

7.1 The Client shall pay Straw and Co the Costs plus, VAT in accordance with the payment terms set out in the Statement of Work.

7.2 Subject to postponement of the Services or termination of the Agreement in accordance with clause 16.2, the Client acknowledges that should it be delayed or have failed to comply with its obligations in accordance with the Production Schedule (such as late delivery of the Input Materials, such delay shall not have the effect of delaying or pushing out the payment of the last instalment of any Costs, which shall be paid, in any event in accordance with the Production Schedule, except in the event of any delays caused by Straw and Co.

7.3 Straw and Co will at the Client’s reasonable request give the Client details of its spending of the Costs up to the date of such request.

7.4 Unless otherwise agreed, any overspend on the Costs shall be met by Straw and Co, except to the extent that it arises from changes to the Services requested by the Client, or as a result of acts or omissions of the Client that are inconsistent with its obligations under the Agreement.

7.5 Invoices will be generated in accordance with the payment terms set out in the Statement of Work. The Client shall pay each validly issued invoice submitted to it by Straw and Co, in pounds sterling in full within 30 days of receipt to a bank account nominated in writing by Straw and Co.

7.6 The Client acknowledges that if it does require Straw and Co to procure the purchase of Third Party Materials, certain third parties require payment in advance for the use of their Third-Party Materials or their services. In such an event, Straw and Co is entitled to render an invoice in advance of commencement or completion of the Services and the Client shall pay the same on the payment terms stated in such invoice.

7.7 If the Client disputes any invoice in good faith, it must notify Straw and Co within 7 days of receipt of that invoice, at which time the Client will be entitled to withhold payment of the disputed amount pending resolution of the dispute but will pay the undisputed amount in accordance with the terms of clause 7.The provisions of clause 8 shall not apply to any disputed amounts except, if the dispute is finally resolved in Straw and Co’s favour, in which case, clause 7.8 shall apply as from the original due date for payment.

7.8 Without prejudice to any other right or remedy that it may have, if the Client fails to pay Straw and Co on the due date the Client shall pay interest on the overdue amount at the rate of 4% per annum above Lloyds Bank PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amountand Straw and Co may suspend all Services being provided under the Agreement until payment has been made in full.

7.9 The Client acknowledges that the assignment in clause 9 is only effective once all Costs due under the relevant Statement of Work have been received in cleared funds by Straw and Co.

7.10 Time for payment shall be of the essence of the Agreement.

7.11 The Client shall have no rights of set-off, counterclaim, deduction or any other right to withhold payment due under an invoice for any reason.



8. CREDIT

The Client authorises Straw and Co to insert, or procure the insertion of, a credit as the producer of the Video on the end credits of the Video, with its name and web address printed on all hard copies of the Video and included alongside all online versions of the Video. Provided that the Client has notified all third parties of its credit obligation to Straw and Co under the Agreement, no inadvertent failure by the Client or by any such third party to accord Straw and Co such credit will constitute a breach of the Agreement by the Client, provided further that it uses its reasonable efforts to remedy such failure where practicable.



9. INTELLECTUAL PROPERTY RIGHTS

9.1 Subject to payment in full of all monies due to Straw and Co by the Client in accordance with the Agreement and the Client’s compliance with the terms of the Agreement, and save as provided for in clauses 2and9.3.2, Straw and Co shall assign, by way of present and future assignment with full title guarantee to the Client all Intellectual Property Rights in the Deliverables excluding any Input Materials and the Edit Files for use in the Applications.

9.2 The Client acknowledges that the Edit Files reflect the know-how, methodology and intellectual capital that Straw and Co has developed or acquired prior to performing the Services. As a result, the Intellectual Property Rights in the Edit Files are to be retained by Straw and Co, subject to clause 2.2. If the Client wishes to acquire an assignment of all Intellectual Property Rights in the Edit Files, such acquisition shall be subject to payment of a fee and separate terms to be agreed by the parties.

9.3 Where a third party has rights in any Deliverables, such as in Third Party Materials, Straw and Co shall notify the Client in writing:

9.3.1 whether an assignment to the Client of the relevant proposed Third-Party Materials can be obtained and the cost of obtaining it; and

9.3.2 if an assignment of the relevant proposed Third-Party Materials cannot be obtained or the Client does not agree to the proposed cost of an assignment, the cost of obtaining a licence of such materials for the Client’s use of the production in connection with the Applications noted in the Statement of Work.

9.4 Following Straw and Co’s notice, pursuant to clause 2, the Client shall notify Straw and Co in writing whether Straw and Co is required to obtain an assignment (if available) or whether the Client wishes to be granted a licence directly from that particular third party. If Straw and Co is to obtain an assignment the provisions of clause 9 apply. If the Client wishes to be granted a licence directly from that third party, then Straw and Co will assist the Client in obtaining such licence directly from that particular third party. The Client shall be responsible for paying the costs of such assignment or licence, and any legal costs reasonably required to secure such rights, as appropriate.

9.5 Straw and Co hereby waives the benefits of any provision of law relating to so-called “moral rights” (including without limitation any rights of Straw and Co under section 77 to section 85 inclusive of the Copyright Designs and Patents Act 1988) and any similar laws of any jurisdiction in relation to the Deliverables. Straw and Co further agrees to procure the waiver of all such rights in favour of the Client and its successors in title by all persons engaged or employed by Straw and Co and who contribute to the production and to whom such rights may accrue.

9.6 The Client shall own or be entitled to grant Straw and Co the right to use the Intellectual Property Rights in the Input Materials. The Client hereby grants Straw and Co a non-exclusive, worldwide, irrevocable, royalty free licence to copy, amend, publish, distribute and use the Input Materials solely to the extent necessary for the purpose of providing the Services. The Client warrants and undertakes that use by Straw and Co in accordance with the terms of the Agreement shall not infringe the Intellectual Property Rights or any other rights of any third party.



10. COMPLIANCE WITH LAWS

In performing its services under the Agreement, Straw and Co shall comply with all applicable UK laws, regulations and directives from time to time in force. For the avoidance of doubt, Straw and Co is not responsible however, for ensuring that the content of the Deliverables which is provided in accordance with specific requirements under the Brief or requirements of the Client, complies with all applicable laws, regulations and codes, unless this is expressly stated in the Statement of Work.



11. WARRANTIES

11.1 Each party warrants and undertakes to the other that:

11.1.1 it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform its obligations under the Agreement and that those signing a Statement of Work are duly authorised to bind the party for whom they sign; and

11.1.2 it will hold all personal data acquired under the Agreement in accordance with its obligations under any applicable data protection legislation.

11.2 Straw and Co hereby warrants and undertakes to the Client that:

11.2.1 the Deliverables (save for the Input Materials) will not infringe the Intellectual Property Rights or any other rights of any third party;

11.2.2 the Deliverables (save for the Input Materials) will not contain any defamatory matter; and

11.2.3 Straw and Co shall not make any commercial exploitation of the Edit Files, save it shall be entitled to use the Edit Files as part of its show reel.

11.3 The Client hereby warrants and undertakes to Straw and Co that:

11.3. 1 use by Straw and Co of the Input Materials in accordance with the Agreement will not infringe the Intellectual Property Rights of any third party, nor any other rights of any third party;

11.3.2 the Input Materialswill not contain any defamatory matter and all statements made by the Client or at its direction which are included in the Deliverables are accurate and true;

11.3.3 it shall comply with the terms of any licence to use the Third-Party Materials (if applicable); and

11.3.4 it shall obtain all relevant release forms, consents, licences and waivers duly signed by any employees, agents and guests at the Client’s premises that appear in the production, for their contribution to be included in the production and exploited as envisaged under the Agreement and shall be solely responsible for any costs involved in obtaining the same.

11.4 All warranties, conditions and terms not expressly set out in the Agreement, whether implied by statute, common law or otherwise (including, without limitation, warranties as to satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law.



12. INDEMNITY

12.1 Straw and Co hereby agrees to indemnify the Client against all and any losses, costs, damages, liabilities, claims, demands and expenses suffered or incurred by the Client, including legal expenses reasonably and properly incurred, arising out of or connected with any claim by any third party against the Client that the use or possession of the Deliverables by the Client in accordance with the Agreement, infringes the Intellectual Property Rights or any other rights of that third party.

12.2 Notwithstanding the foregoing, the provisions of clause 12shall not apply where the infringement arises out of: (i) any Input Materials; (ii) any use of the Deliverables outside of the Applications noted in the Statement of Work; or (iii) any modification undertaken by the Client or a third party on its behalf.

12.3 The Client hereby agrees to indemnify Straw and Co against all and any losses, costs, damages, liabilities, claims, demands and expenses suffered or incurred by Straw and Co, including legal expenses reasonably and properly incurred, arising out of or connected with any claim by any third party against Straw and Co that: (i) the use or possession of the Input Materials by Straw and Co in accordance with the Agreement infringes the Intellectual Property Rights or any other rights of a third party; or (ii) arises from the Client’s failure to comply with the relevant licence terms for any Third Party Materials, or to obtain an appropriate licence for Third Party Materials, in circumstances where it is required to do so.

12.3.1 In the event a claim arises under which a party can claim under the indemnity set out in clause 12or 2, the party seeking to rely on the indemnity (the ‘Indemnified’) shall promptly and, in any event, within 15 days of being made aware of the same, notify the other party (the ‘Indemnifier’) in writing of any such claim;

12.3.2 the Indemnified shall not make any admission as to liability or agree to any settlement of or compromise any such claim without the prior written consent of the Indemnifier (such consent shall not be unreasonably withheld or delayed); and

12.3.3 the Indemnifier shall, on its written request and at its own expense, be entitled to have the conduct of or settle all negotiations and litigation arising from any such claim and the Indemnified shall, at the Indemnifier’s request, give the Indemnifier all reasonable assistance in connection with those negotiations and litigation.



13. LIMITATION OF LIABILITY

13.1 Nothing in the Agreement shall limit or exclude either party’s liability for: death or personal injury caused by its negligence; fraud or fraudulent misrepresentation; breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or any matter for which it would be unlawful for the parties to exclude liability.

13.2 Subject to clause 13, Straw and Co shall not be liable, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement forloss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of publicity or opportunity to enhance reputation even if Straw and Co delays or abandons production or exploitation of the production; loss of or damage to goodwill; and any indirect or consequential loss.

13.3 Subject to clause 13and clause 2, Straw and Co’s total liability to the Client, for a claim made in respect of loss or damage suffered by the Client as a result of a breach of the terms of the Agreement, tort (including negligence), breach of statutory duty or otherwise howsoever as a result of the Agreement shall not exceed an amount equivalent to the Costs paid by the Client under the Agreement (but excluding any VAT).

13.4 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.



14. CONFIDENTIALITY

14.1 All Confidential Information disclosed by a party to the other party (before or after the date of the Agreement), shall be held in confidence and used only for the purpose of performing the Agreement and using the Deliverables.

14.2 The foregoing restrictions on use and disclosure of Confidential Information do not apply to information to the extent that such information:

14.2.1 is in the possession of the receiving party at the time of its disclosure hereunder and not otherwise subject to obligations of confidentiality;

14.2.2 is or becomes publicly known, through no wrongful act or omission of the receiving Party or breach of the Agreement;

14.2.3 is received without restriction from a third party free to disclose it without obligation to the disclosing party;

14.2.4 is developed independently by the receiving party without reference to the Confidential Information or other information of the disclosing party; or

14.2.5 is disclosed as required by law.



15. PUBLICITY AND PROMOTION

15.1 Each party is entitled to publicise the relationship between the parties, and the broad nature of the Services and Deliverables, subject to each such publication being mutually approved in writing by the other party in advance (such approval not to be unreasonably withheld or delayed). In doing so, each party may make reasonable use of the other party’s name and trade marks in the manner approved by the other party.

15.2 Straw and Co (and its subcontractors) shall have the non-exclusive, worldwide, irrevocable, royalty free right and licence from delivery of the Deliverables to the Client or use of the Deliverables by the Client (whichever shall be the later), to use the final production(s) (or any part thereof) for its own promotional use, including on Straw and Co’s or its subcontractors’ website, as part of its show reels and as part of its portfolio of works in internal and client and prospective client presentations.



16. POSTPONEMENT AND TERMINATION

16.1 If the Client wishes to postpone the provision of the Services (or any part of them), it must give Straw and Co at least 4 week’s prior notice. If the Client fails to provide 4 weeks prior written notice, it shall pay all Costs in respect of the Services (which shall include without limitation all costs associated with Third Party Materials, crew and personnel costs, where such crew and personnel cannot be reasonably redeployed) up to the value of the Costs stated in the Statement of Work. The parties shall discuss and agree any reschedule of the Services, timelines (subject to availability), further Costs (if applicable) and on agreement, Straw and Co shall produce a new Production Schedule, which once signed by the parties, shall be deemed to replace the previous Production Schedule. For the avoidance of doubt, where postponement takes place with less than 4 weeks prior written notice, the Client will be liable to pay additional costs for the rescheduled Services. The Client may only postpone the Services once.Thereafter the client must continue with the Services or exercise its rights to terminate as set out below. Straw and Co may postpone the Services by up to 4 weeks on notice to the Client, without being in breach of this Agreement.

16.2 Subject to clause 16.3.2, the Client may terminate the Agreement up to 4 weeks before the Shoot Date on providing no less than 4 weeks prior written notice to Straw and Co before the Shoot Date.

16.3 On termination under paragraph 1, the Client shall pay to Straw and Co:

16.3.1 all sums that Straw and Co is contractually obligated to pay third parties; and

16.3.2 for all of the work reasonably carried out in respect of the Services up to the date of notice, up to the value of the associated work as set out in the Costs in the SOW.

16.4 If the Client terminates the Agreement less than 4 weeks before the Shoot Date, then the Client shall pay all Costs in the Statement of Work (which shall include without limitation all costs associated with Third Party Materials, crew and personnel costs) up to the value of the Costs stated in the Statement of Work.

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

16.5.1 the other commits a material breach of any term of the Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 Business Days after being notified in writing to do so;

16.5.2 the other party becomes insolvent or involved in a liquidation or termination of its business, is placed in administration, is subject to a winding up order, or if it is in dissolution or any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the foregoing events; or

16.5.3 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

16.6 On termination of the Agreement for any reason:

16.6.1 except as stated in this Agreement, neither party shall have any further obligation to the other;

16.6.2 the rights, remedies or obligations of the parties that have accrued or become due before termination shall remain unaffected;

16.6.3 subject to payment of all monies due under this Agreement, the Client shall remain entitled to all rights granted or assigned to it under the Agreement;

16.6.4 each party shall return any Confidential Information belonging to the other in its possession or control, (or at the other party’s request, destroy such Confidential Information and any copies of the same and shall certify that it has done so in writing); and

16.6.5 any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect, including clause 1 (Definitions and Interpretation), clause 11 (Warranties), clause 4 (Indemnity), clause 12.3.3 (Limitation of Liability), clause 13.4( Confidentiality) and clauses 14.2.5 to 28 inclusive.



17. ARCHIVING

As part of the Services and in consideration of the Costs being paid, Straw and Co shall store the final production and the Edit Files in its archives for 6 months after the earlier of: (a) acceptance or deemed acceptance of the Deliverables; (b) termination; or (c) expiry of the Agreement (“Initial Archive Period”).   After the Initial Archive Period, Straw and Co will continue to store the final production and Edit Files in its archives on an annual basis for the Archive Fee which shall be invoiced yearly in advance. In the event the Client requests the final Edit Files are destroyed it shall provide Straw and Co no less than 3 months’ notice at any time before the end of the Initial Archive Period and pay Straw and Co a fee for the destruction of the Edit Files.



18. NON-SOLICITATION

18.1 The Client shall not, without the prior written consent of Straw and Co at any time from the date of the Agreement to the expiry of 12 months after delivery of the last set of Deliverables, or termination or expiry of the Agreement (whichever is the later), solicit or entice away from Straw and Co or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Straw and Co in the provision of the Services.

18.2 Any consent given by Straw and Co in accordance with clause 18shall be subject to the Client paying to Straw and Co immediately on demand, a sum equivalent to 100% of the then current annual remuneration (including benefits) of Straw and Co’s employee, consultant or subcontractor.



19. ASSIGNMENT AND OTHER DEALINGS

19.1 Neither party shall, without the prior written consent of the other, assign, transfer, mortgage, charge, or declare a trust over its rights and obligations under the Agreement.

19.2 Straw and Co will be entitled to sub-contract any of its obligations under the Agreement. For the avoidance of doubt, Straw and Co shall remain liable for the acts and omissions of any sub-contractors that it engages in connection with the Agreement.



20. FORCE MAJEURE

Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks the party not affected may terminate the Agreement with immediate effect.



21. THIRD-PARTY RIGHTS

No one other than a party to the Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.



22. NO PARTNERSHIP OR AGENCY

22.1 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party.

22.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.



23. WAIVER

No failure or delay by a party to exercise any right or remedy provided under the Agreement 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. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.



24. VARIATION

No variation of the Agreement shall be effective unless it is in writing and signed by the authorised representatives of the parties.



25. NOTICES

25.1 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be:

25.1.1 delivered by hand or by prepaid 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

25.1.2 sent by e-mail to its main e-mail address.

25.2 Any notice or communication shall be deemed to have been received:

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

25.2.2 if sent by prepaid first-class post or other next working day delivery service, at 11.00 am on the second Business Day after posting; or

25.2.3 if sent by e-mail at 9.00am on the next Business Day after transmission.

25.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

25.4 The provisions of this clause 25 shall not apply to the service of any proceedings or other documents in any legal action.



26. ENTIRE AGREEMENT

26.1 The Agreement 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.

26.2 Each party agrees that it 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 Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.



27. GOVERNING LAW

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



28. JURISDICTION

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