1. Definitions
1.1 In these Conditions unless the context otherwise requires:
“Client”means the client named in the Order;
“Channel” means the broadcasting channel, medium or platform on which the Commercial is to be shown as further defined in the Order;
“Conditions” means these conditions set out in this document and (unless the context otherwise requires) includes any Special Terms agreed in writing between FIN and the Client;
“Contract” means the agreement between FIN and the Client consisting of the Order, these Conditions and any other documents, or parts thereof, specified in the Order;
“Commercial” means the Commercial as defined in the Order Form;
“Commercial Specification” means the Commercial specification referred to in and annexed to the Order;
“FIN” means Fin (London) Limited (UK Company Number: 05281113);
“Intellectual Property” means all copyright, unregistered and registered designs, database rights, and any and all other intellectual and industrial property rights (whether now existing or in the future created) both in the UK and all other countries of the world for the full period of those rights (including any extensions and renewals);
“Order” means FIN's officially numbered Order together with all the documents attached or referred to therein;
“Price” means the price set out in the Order;
“Rights” mean the rights that FIN grants to the Client to use the Commercial as further set out in Condition 5 and in the Order;
“Services” means the services specified in the Order;
“Service Stage Schedule” means the service stage schedule referred to in and annexed to the Order;
“Special Terms” means the special terms of the Contract (if any) set out in the Order.
2. Background: These Conditions are the only conditions upon which FIN is prepared to deal with the Client and together with the Order they shall govern the Contract to the entire exclusion of any other terms and conditions, unless an authorised representative of FIN or FIN agrees otherwise in writing. If the Order is in conflict with these Conditions the terms of the Order will prevail. No variation or addition to these Conditions or an Order or the Contract shall be binding upon FIN unless agreed in writing between an authorised representative of FIN and an authorised representative of the Client. Subject to any amendment in accordance with this Condition 2, these Conditions embody the entire understanding and agreement of the parties and supersede and override any prior promises, undertakings or representations.
3. Contract Formation: An Order constitutes an offer by FIN to carry out the Services at the Price and subject to these Conditions. No Contract shall be formed until both FIN and the Client have signed the Order or FIN elects to commence the provision of the Services irrespective of the fact that the Order has not been signed by the Client. Subject to earlier termination under Condition 11.1, the Contract shall then continue until FIN completes the Services.
4. The Services: FIN shall supply the Services and deliver the Commercial to the Client to materially meet the Commercial Specification. FIN will use all reasonable endeavours to ensure that the Commercial is Clearcast and Channel compliant and that any third party rights are cleared for broadcast in the Territory for the Term. FIN’s ability to comply with this Condition relies upon the accuracy and timeliness of information and material supplied by the Client.
5. Rights
5.1 Subject to the remainder of this Condition 5, all Intellectual Property in the Commercial created during the course of the Services shall belong to FIN. FIN grants the Client the rights to use the Commercial (and the Intellectual Property that protects it) on the licensing terms further set out in the Order.
To the extent the Client contributes its own Intellectual Property to the Commercial, the Client grants FIN such licence as it requires to use such Intellectual Property and grant third parties sub-licenses to use such Intellectual Property for the purposes of the Project. All other Intellectual Property in the Commercial to which FIN has no right, title or interest (“Third Party IP”) shall be licensed by FIN to the Client on such terms as the Client may procure from the applicable third party. Unless otherwise stated in the Order, FIN offers no warranty of any kind in respect of Third Party IP.
5.2 FIN may use rushes of generic images or sounds that are not directly related to the Client or the Client’s staff in other commercials.
5.3 When the Commercial is first broadcast to the public FIN may use the Commercial, the Client’s name and the fact that the Client has entered into the Contract to promote FIN and its business on its website and for its own general PR and promotional purposes.
6. Price and Terms of Payment
6.1 The Price is exclusive of any applicable VAT (which shall be payable by FIN subject to receipt of a correct invoice).
6.2 FIN may require the Price be paid in advance as a non refundable deposit or in instalments pursuant to a Service Stage Schedule. Such variations (if applicable) will be set out as Special Terms.
6.3 Subject to Condition 6.2 and on completion of the Services, FIN will issue an invoice to the Client for either the full Price or the final instalment of the Price and such invoice shall include such further/additional payments applicable under Conditions 7.1 and 9.3 (“the Final Invoice”).
6.4 Each FIN invoice and the Final Invoice shall unless otherwise stated in the invoice be due within 30 days of its date. Time shall be of the essence in relation to all payments due to FIN under the Contract.
6.5 If the Client fails to pay any sum due to FIN within 10 days of its due date then (without prejudice to FIN’s other rights and remedies) FIN may immediately suspend provision of the Services until such payment is made and/or terminate the Contract.
7. Client’s Obligations
7.1 The Client shall supply FIN with all information, data, content, materials, instructions and approvals FIN requires to provide the Services in accordance with the Contract. If the Client fails to do so or provides FIN with delayed, incomplete, incorrect or inaccurate information, data, content, materials, instructions or approvals then FIN reserves the right to suspend its provision of the Services, terminate the Contract by giving the Client notice and/or charge additional reasonable sums to cover the extra work required and time lost as a result.
7.2 The Client indemnifies FIN from and against all actions, proceedings, claims, expenses, losses (including any direct or indirect consequential losses, loss of profit and loss of reputation), costs (including FIN’s reasonable legal costs), demands, awards and damages however arising directly or indirectly as a result of the Client breaching Condition 7.1 and providing incorrect, outdated or misleading information upon which FIN relies to ensure the Commercial is Clearcast and Channel compliant.
8. Service Stages
8.1 The Service Stage Schedule sets out how the Services will be performed, by when and what approvals are needed. The Client acknowledges and agrees that any timings set out in the Service Stage Schedule are for guidance purposes only.
8.2 FIN will use its reasonable endeavours to meet the guideline timings set out in the Service Stage Schedule. FIN will not be liable if timings in the Service Stage Schedule are not met on time and the Client acknowledges that it will have no redress against FIN for FIN’s failure to meet any such timing. FIN will, however, inform the Client as soon as reasonably practicable once FIN is aware that a Service Stage Schedule timing may not be met and provide the Client with revised timings.
9. Approvals and Amendments
9.1 Subject to the Service Stage Schedule and to Condition 9.2, the Client shall give FIN such approvals as FIN requires within such timelines as FIN requires.
9.2 FIN acknowledges and agrees that during the performance of the Services the Client may wish to make certain amendments to the Commercial during the provision of the Services. FIN has built into the Price two rounds of amendments to the unfinished Commercial in the post production stage. Any other amendments which are not in line with the Commercial Specification or which are not within the two rounds of amendments in the Post Production stage will be charged in addition to the Price in line with FIN’s rate card.
9.3 The Commercial will be deemed approved on the earlier of: (a) the Commercial being broadcast on the Channel; (b) the Client approving the Commercial in full (such approval not to be unreasonably withheld, conditioned or delayed); (c) FIN deeming the Commercial to materially meet the Commercial Specification. Once approved, FIN will send the Commercial to the Client or to such other party as the Client directs in a high resolution format and this will signify the completion of the Services.
10. Liability
10.1 This Condition 10 sets out the entire financial liability of FIN to the Client under the Contract.
10.2 Each party warrants to the other that it has full power and authority to carry out the actions contemplated under the Contract, and that its entry into and performance of the terms of the Contract will not infringe the rights of any third party or cause it to be in breach of any obligations it owes to a third party.
10.3 FIN warrants to the Client that the Services will be provided in accordance with standard industry practice, reasonable care and skill and in a competent and professional manner.
10.4 The Client warrants to FIN that the Commercial when broadcast will: (a) comply with all laws, regulatory requirements and standard codes of practice applicable to it; and (b) not infringe third party Intellectual Property or otherwise breach any rights of any third party.
10.5 The express terms of the Contract are in place of all warranties, representations, conditions, terms, undertakings and obligations which but for this Condition 10.5 would be implied or incorporated into the Contract, or any collateral agreement, by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are excluded to the fullest extent permitted by law.
10.6 Nothing in these Conditions affects any liability for death or personal injury caused by FIN’s negligence or for fraudulent misrepresentation.
10.7 Subject to Conditions 10.5 and 10.6:
10.7.1 FIN’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price; and
10.7.2 FIN shall not be liable to the Client for any unforeseeable loss or damages arising from the provision (or non-provision) of the Services, including loss of profit and consequential loss or damage.
11. Termination
11.1 FIN may terminate the Contract at any time on 14 days’ notice to the Client and may also terminate the Contract under Conditions 6.5 and/or 7.1.
11.2 Either party may terminate the Contract by giving notice to the other party if:
11.2.1 the other party breaches any term of the Contract and fails to remedy such breach within 7 days of receipt of a notice giving details of the breach and how they are reasonably required to remedy it; or
11.2.2 if the other party: (a) has stopped payment of, or is unable to pay its debts; (b) compounds with or convenes a meeting of its creditors or some action is taken to terminate its business; (c) has a receiver, administrative receiver, liquidator or provisional liquidator appointed over all or any part of its assets; (d) experiences an event which would entitle the appointment of a receiver over its asset or which could cause any floating charge on its assets to crystallise; (e) has a petition presented or an order made or a resolution passed for its winding up or a meeting is convened for the purpose of winding it up; (f) experiences any event analogous to the events described in this definition shall occur in any jurisdiction in which it is incorporated or resident or carries on business; or (g) for any reason ceases, or threatens to cease, to carry on business.
11.3 On termination of the Contract shall, without prejudice to any other rights or remedies a party may be entitled to under the Contract or at law, not affect any accrued rights or liabilities of either party.
12. General
12.1 Dealings in Rights and Obligations: The Client shall not without the prior written consent of FIN (such consent not to be unreasonably conditioned, withheld or delayed) assign, sub-license, transfer or charge any of its rights under the Contract, nor sub-contract any or all of its obligations under the Contract, nor purport to do any of the aforementioned.
12.2 Force Majeure: FIN shall not be liable to the Client by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Services, if the delay or failure was due to an act of God, war, terrorism, power failure, equipment failure or any other cause beyond FIN’s reasonable control.
12.3 Confidentiality: Each party shall keep confidential the terms of the Contract and all information of a confidential nature disclosed to it by the other pursuant to a Contract including pricing information, Client information and information about the Commercial to which either party may be privy.
12.4 Website: Where projects Fin produce are in the public domain Fin intend to promote this work via the Fin website unless the client expressly requests confidentiality. Fin will seek permission to promote all other types of work.
12.5 Notices: Any notice or consent required or permitted to be given by either party to the other under these Conditions shall be in writing and addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any such notice may be delivered personally, by first class pre-paid letter, by e-mail or by fax and shall be deemed to have been served: if by hand, when delivered; if by first class post, 48 hours after posting; and if by e-mail or fax, when despatched.
12.6 Waiver: No waiver by FIN of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.7 Severability: If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.8 Third Party Rights: FIN and the Client do not intend that any of the terms of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to the Contract.
12.9 Governing Law and Jurisdiction: The Contract is governed by English law and the English Courts shall have exclusive jurisdiction to resolve any disputes.