Mallard Video Productions Terms and Conditions

Mallard Video Productions Limited Terms and Conditions

1. Interpretation

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

Definitions:

• Business Day: a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Glasgow are open for business.
• Charges: the charges payable by the Client for the supply of the Services.
• Client: the person or firm who purchases Services from MVP.
• Client Default: has the meaning set out in clause 2.
• Conditions: these terms and conditions as amended from time to time in accordance with clause 5.
• Contract: the contract between MVP and the Client for the supply of Services in accordance with the Statement of Work and these Conditions.
• Deliverables: the deliverables set out in the Order Statement of Work produced by MVP for the Client, including any videos and / or photographs.
• Input Materials: all Client approvals, scripts, footage, documents, branding, images and materials, performances and services provided or to be provided by the Client, or on its behalf to MVP 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 but not limited to any film, photographic, music and / or video content.
• Intellectual Property Rights: copyright, neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, format rights, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
• MVP: Mallard Video Productions Limited, registered in Scotland with company number SC513515.
• MVP Materials: has the meaning set out in clause 1(e).
• Services: the services, including the Deliverables, supplied by MVP to the Client as set out in the Statement of Work.
• Statement of Work: the statement of work provided by MVP to the Client, which includes the agreed brief, the production schedule (if relevant) and the statement of the Charges (including any third-party costs (if known)).
  • Interpretation:
    • A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
    • 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.
    • A reference to writing or written includes email.

2. Basis of contract
   • The Contract shall be formed when MVP and the Client agree a Statement of Works for the provision of Services by MVP to the Client which shall be signed by both parties. These Conditions shall apply to and be incorporated in the Contract.
   • Any samples, drawings, descriptive matter or advertising issued by MVP, and any descriptions or illustrations contained in MVP’s marketing materials are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
   • These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
   • If there any conflicts or inconsistencies between these Conditions and the Statement of Work, the terms of the Statement of Work shall apply.
   • Any quotation given by MVP shall not constitute an offer and is only valid for a period of [20] Business Days from its date of issue. A quotation shall be superseded by the terms of the Contract.
3. Supply of Services
   • MVP shall supply the Services (including the Deliverables) to the Client in accordance with the Statement of Work in all material respects.
   • [MVP shall use all reasonable endeavours to meet any performance dates specified in the Statement of Work, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.]
   • MVP reserves the right to amend the Statement of Work if necessary to comply with any applicable law or regulatory requirement, or to make any non-material change to the Statement of Work if the amendment will not materially affect the nature or quality of the Services, and MVP shall notify the Client in any such event.
   • MVP warrants to the Client that the Services will be provided using reasonable care and skill however MVP accepts no liability for claims or losses arising as a result of unforeseen events or circumstances including, but not limited to, equipment failure, power outages, poor internet connectivity at any non-MVP location or any other situation beyond MVP’s control.
4. Client’s obligations
   • The Client shall:
     • provide MVP with such Input Materials as MVP may reasonably require in order to supply the Services, and ensure that the Input Materials are complete and accurate in all material respects;
     • co-operate with MVP in all matters relating to the Services including providing its input on or acceptance of the Services promptly;
     • (if applicable) provide MVP, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by MVP for the delivery of the Services;
     • unless otherwise agreed with MVP, obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start or by such earlier date as the parties shall agree;
     • keep all materials, equipment, documents and other property of MVP (MVP Materials) at the Client’s premises in safe custody at its own risk, maintain the MVP Materials in good condition until returned to MVP, and not dispose of or use the MVP Materials other than in accordance with MVP’s written instructions or authorisation; and
     • comply with any additional obligations as set out in the Statement of Work.
   • If MVP’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
     • without limiting or affecting any other right or remedy available to it, MVP shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays MVP’s performance of any of its obligations;
     • MVP shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from MVP’s failure or delay to perform any of its obligations as set out in this clause 2; and
     • the Client shall reimburse MVP on written demand for any costs or losses sustained or incurred by MVP arising directly or indirectly from the Client Default.

5. Charges and payment
   • The Client shall pay MVP the fees and expenses [calculated ]as set out in the Statement of Work together with any other sums due to be borne by the Client pursuant to these Conditions.
   • Edit Changes. MVP’s fees are calculated based on a maximum of 3 rounds of changes to the Deliverables. If the Client requires additional changes to the Deliverables the Client shall pay for an additional day of editing at the prevailing contract rate (if applicable) or agreed amount for each further 3 rounds of changes.
   • Variations from the Statement of Work / Additional Cost. The Client shall be liable for any additional work undertaken / costs reasonably incurred by MVP resulting from:
     • changes to the brief, Services or Deliverables set out in the Statement of Work;
     • requests to provide new edits or access any of the project rushes, edit files or photo stills after the project has been completed;
     • any delay to the project resulting from the Client failing to provide any Input Materials by the time required or otherwise failing to take any action required to enable the delivery of the Services to any agreed timescales;
   • Travel days shall be charged at half day rates for members of the production crew.
   • MVP shall invoice the Client on completion of the Services or as otherwise set out in the Statement of Work.
   • The Client shall pay each invoice submitted by MVP:
     • within 30 days of the date of the invoice; and
     • in full and in cleared funds to the bank account identified on MVP’s invoice, and time for payment shall be of the essence of the Contract.

• All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by MVP to the Client, the Client shall, on receipt of a valid VAT invoice from MVP, pay to MVP such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
• If the Client fails to make a payment due to MVP under the Contract by the due date, then, without limiting MVP’s remedies under clause 10, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
• All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6. Intellectual property rights
   • All Intellectual Property Rights (including but not limited to the copyright in the Deliverables) in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Input Materials) shall be owned by MVP.
   • MVP reserves the right to use any footage and related files from the delivery of the Services in its show-reels and for other promotional purposes including on its social media.
   • MVP grants to the Client a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to use and copy the Deliverables (excluding the Input Materials) in their complete delivered form only for the purpose of receiving and using the Services and the Deliverables. MVP does not give permission for the Deliverables to be altered, edited or used as part of another production, unless agreed by it in writing.
   • The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 3.
   • MVP shall indemnify the Client against any losses, costs, damages, liabilities, demands and / or expenses incurred by the Client, including legal expenses reasonably incurred, arising out of or connected with any claim by any third party that the use or possession of the Deliverables by the Client in accordance with the Contract infringes the intellectual property rights of any third party.
   • The Client grants MVP a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Input Materials to MVP for the term of the Contract for the purpose of providing the Services to the Client and warrants and undertakes that it has all necessary rights to use and provide the Input Materials to MVP under the Contract and that the use by MVP of the Input Materials for the delivery of the Services and the Deliverables shall not infringe the intellectual property rights of any third party.
   • The Client shall indemnify MVP against any losses, costs, damages, liabilities, demands and / or expenses incurred by MVP, including legal expenses reasonably incurred, arising out of or connected with any claim by any third party that the use or possession of any of the Input Materials by MVP for the delivery of the Services and the Deliverables infringes the intellectual property rights of any third party.
7. [Data protection]
   • MVP and the Client shall each, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 and the General Data Protection Regulation ((EU) 2016/679) as retained in UK law. This clause is in addition to, and does not reduce, remove or replace, a party’s obligations arising from such requirements.
   • MVP will collect and process the personal data of all individuals featured in the Deliverables in accordance with the privacy notice annexed to this agreement. MVP will procure that each such individual signs and dates the privacy notice and returns it promptly to info@mallardproductions.co.uk and the Client shall provide all reasonable assistance to ensure that the individual does so.]
8. Production Matters
   • Cancellation or Postponement of the Services by or due to the Client. In the event that the Client cancels or postpones the delivery of the Services, or if the Services are unable to be delivered on a scheduled date or dates due to any act or omission of the Client, the Client shall be liable to pay:
     • all [non-refundable ]booked travel, accommodation, equipment and other third party costs incurred in relation to the cancelled or postponed Services; and
     • if the cancellation or postponement occurs less than [48 hours] before the date for delivery of the Services, 50% of the fees payable in respect of the cancelled or postponed Services.
   • Cancellation or Postponement of the Services for other reasons. In the event that the delivery of the Services is unable to proceed on any scheduled date due to the weather or other event outwith the control of either of the parties (including where MVP determine that the Services cannot be delivered for any health and safety reason) then the Client shall be liable to pay all [non-refundable ]booked travel, accommodation, equipment and other third party costs incurred in relation to the cancelled or postponed Services.
   • Delivery of Services. MVP shall adhere to industry norm practices and relevant health and safety legislation in relation to the delivery of the Services including when scheduling and managing still photography and / or film shoots. MVP shall at its sole discretion determine if it is safe and / or appropriate to conduct filming and / or fly any drones.
   • Production Staffing and Management. MVP will determine the resourcing of the Services and shall not be obliged to ensure that any particular individual undertakes any task in relation to the Services.
   • Creative Control. MVP and the Client will engage and consult in relation to the editorial, creative and artistic content of the Deliverables however MVP shall retain creative control of the final Deliverables.
   • Subtitling of Video. MVP will use reasonable endeavours to ensure that any subtitles included in the Deliverables are accurate but shall not be liable for any inaccuracies caused by or arising from the dialect, language or acronyms used by the subject of any video forming part of the Deliverables.
   • Use of Equipment. The Client and its employees and agents are not permitted to use, move or alter any of MVP’s equipment without MVP’s supervision and / or consent.
9. Limitation of liability
   • MVP has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5 million per claim. The limits and exclusions in this clause reflect the insurance cover MVP has been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess loss.
   • References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, delict (including negligence), misrepresentation, restitution or otherwise.
   • Nothing in this clause 9 shall limit the Client’s payment obligations under the Contract.
   • Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
     • death or personal injury caused by negligence;
     • fraud or fraudulent misrepresentation; and
     • breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
   • Subject to clause 4 (Liabilities which cannot legally be limited), MVP’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 Contract, delict (including negligence), breach of statutory duty or otherwise howsoever as a result of the Contract shall not exceed an amount equivalent to the Charges paid by the Client under the Contract (but excluding any VAT charged thereon) net of any third party costs incurred by MVP in relation to travel, accommodation and / or equipment hire.
   • Subject to clause 3 (No limitation of Client’s payment obligations) and clause 9.4 (Liabilities which cannot legally be limited), MVP shall not be liable for any claims for any of the following heads of loss incurred by the Client:
     • loss of profits.
     • loss of sales or business.
     • loss of agreements or contracts.
     • loss of anticipated savings.
     • loss of use or corruption of software, data or information.
     • loss of or damage to goodwill; and
     • indirect or consequential loss.
   • MVP has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, 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 Contract.
   • Unless the Client notifies MVP that it intends to make a claim in respect of an event within the notice period, MVP shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
   • This clause 9 shall survive termination of the Contract.
10. Termination
    • [The Client may terminate the Contract on [two weeks’] written notice. ]
    • [On termination under clause 1, MVP shall be entitled to receive payment:
      • of all sums that MVP is, up to the date of termination, contractually obligated to pay third parties (including any non-refundable bookings for travel, accommodation, equipment or services); and
      • on a pro rata basis for Services rendered up to the date of termination and any pre-production work undertaken in respect of the cancelled Services. The pro rata amount shall be calculated according to the following formula: Number of Business Days on which MVP has provided Services since the most recent scheduled payment date preceding termination divided by Total number of Business Days between the payment date preceding termination and the next scheduled payment date multiplied by amount of next scheduled payment.

• The Client may terminate the Contract with immediate effect by giving written notice to MVP if MVP commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of [ten] Business Days after being notified in writing to do so.
• [On termination under clause 3, MVP shall not be entitled to receive any further payment save for reimbursement of third party costs incurred or booked and to be incurred by MVP and payment for any Deliverables which have been delivered to the Client and accepted prior to termination.]
• On termination of the Contract for any reason:
  • neither party shall have any further obligation to the other under the Contract except as stated in the Contract to survive termination;
  • the rights, remedies or obligations of the parties that have accrued or become due before termination shall remain unaffected; and
  • the Client shall remain entitled to all rights granted or assigned to it under the Contract.
• Without affecting any other right or remedy available to it, each of MVP and the Client may terminate the Contract with immediate effect by giving written notice to the other party if:
  • the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  • the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  • the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
• Without affecting any other right or remedy available to it, MVP may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment.
• Without affecting any other right or remedy available to it, MVP may suspend the supply of Services under the Contract or any other contract between the Client and MVP if:
  • the Client fails to pay any amount due under the Contract on the due date for payment;
  • the Client becomes subject to any of the events listed in clause 6(b) or clause 10.6(c), or MVP reasonably believes that the Client is about to become subject to any of them; and
  • MVP reasonably believes that the Client is about to become subject to any of the events listed in clause 6(a).

11. Consequences of termination
    • On termination or expiry of the Contract:
      • the Client shall immediately pay to MVP all of MVP’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, MVP shall submit an invoice, which shall be payable by the Client immediately on receipt;
      • the Client shall return all of MVP’s Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then MVP may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
    • Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
    • Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
12. General
    • Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
    • Assignment and other dealings.
      • Neither party shall assign, transfer, mortgage, charge, or declare a trust over any of its rights and obligations under the Contract.
      • MVP will be entitled to subcontract any of its obligations under the Contract and shall be liable for the acts and omissions of any subcontractors that it engages in connection with the Contract.
    • • Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by clause 3(b).
      • Each party may disclose the other party’s confidential information:
        • to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 3; and
        • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
      • Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
    • Entire agreement.
      • The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
      • Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any, statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
      • Nothing in this clause shall limit or exclude any liability for fraud.
    • Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    • A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
    • • Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Statement of Work or otherwise intimated to the other party as the email address for such notices from time to time. Any notice or communication shall be deemed to have been received:
        • if delivered by hand, at the time the notice is left at the proper address;
        • if sent by pre-paid first-class post or other next working day delivery service, at 10.00 am on the second Business Day after posting; or
        • if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 7(a)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
      • This clause 7 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
    • Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
    • Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, Scots law.
    • Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.