Terms and Conditions
1. Definitions
1.1. In these terms and conditions, the following terms shall have the meaning ascribed to them below:
Contract
The contract between the Company and the Client for the supply of Services incorporating the Order and these Conditions.
Company
LUNA TIDES Productions Limited registered in England and Wales with company number 14728391.
Client
The person or company who purchases the Services from the Company.
Client Assets
Any footage, audio, visual and/or audio-visual recordings, stills, music, sound effects and other materials, performances by key talent and any third party materials which the Client requires the Company to use in the provision of the Services.
Deliverables
The deliverables set out in the Order to be produced and delivered by the Company to the Client.
Order
The Client's order for the Services in accordance with the Client's acceptance of the Company's quotation.
Production Brief
The document noting the creative brief and production schedule for the Deliverables.
Products
The products of the Services including all recordings and associated audio products created by the Company including all moving and still images and sound recordings in whatever form.
Project
The Client’s television series, film or project named in the Order.
Services
The services to be provided by the Company in the production and delivery of the Deliverables in accordance with the details set out in the Order and the Production Brief.
Term
The period commencing on the Commencement Date and expiring on the date of final delivery of the Deliverables to the Client unless this Contract is terminated earlier in accordance with its terms.
1.2 Interpretation
a.) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
b.) A reference to a party includes its successors and permitted assigns.
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c.) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
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d.) 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.
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2. Basis of Contract
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2.1. The Order constitutes an offer by the Company to provide the Services and to deliver the Deliverables to the Client in accordance with this Contract.
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2.2. The Order shall be deemed to be accepted when the Client indicates to the Company (whether in writing or verbally) that it has accepted the Order at which point and on which date the Contract shall come into existence (Commencement Date).
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2.3. In the event of inconsistency between the Order, the Production Brief and these Conditions, the Order shall take precedence followed by these Conditions and finally the Production Brief.
3. Supply of Services
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3.1. The Company shall supply the Services to the Client in accordance with the Order and the Production Brief in all material respects.
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3.2. Once the Order is confirmed in writing, the Company and the Client shall agree the Production Brief setting out the creative requirements for the Services and a production schedule.
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3.3. The Company will provide the Services using all reasonable skill and care.
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3.4. The Company will use all reasonable endeavours to meet agreed delivery dates for the Deliverables specified in the Order, but any such dates shall be estimates only and shall be subject to clear and timely communication from the Client, timely supply of the Client Assets and regular feedback from the Client. Time shall not be of the essence for the performance of the Services.
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3.5. The Company reserves the right to amend the description of the Service if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Client in any such event.
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3.6. In the event of inclement weather which in the Company’s opinion would pose a risk to health and safety of its personnel or equipment or has the potential to prevent successful video or audio capture, the Company reserves the right to change the date or time of filming to a more suitable date or time.
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3.7. The Company takes Health and Safety matters seriously and will comply with all Health and Safety requirements notified by the Client to the Company in connection with any filming location
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3.8. The Company takes Health and Safety matters seriously and will comply with all Health and Safety requirements notified by the Client to the Company in connection with any filming location organised by the Client. The Company reserves the right to remove any of its personnel and/or equipment from a location if the Company deems it to be unsafe or if crew are subjected to abusive or aggressive behaviour. In such circumstances the Client will be liable for any and all costs incurred or subsequently arising as a result of the Company exiting a location.
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4. CLIENT’S OBLIGATIONS
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4.1. The Client shall:
a.) ensure that the terms of the Order are complete and accurate;
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b.) co-operate with the Company in all matters relating to the Services and provide all Client Assets to the Company in good time and on or before dates requested by the Company to enable the Company to meet the delivery dates requested by the Client;
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c.) provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
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d.) obtain and maintain all necessary licences, permissions and consents which may be required to enable the Company to provide the Services including clearance of all intellectual property rights and other rights in the Client Assets including performances, branding, trademarked goods and logos, imagery, sound recordings and any other copyrighted material which will form part of the final video production for the Services before the date on which the Services are to start;
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e.) if the Client and/or the Order requires the Company to provide the Services at a specified location, the Client shall make all necessary arrangements, payments (including rights and clearance payments) and enter into all necessary contracts with the relevant location owner to grant access to the Company, its personnel and equipment to the location at the dates agreed by the Company and the Client in writing; and
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f.) if the Client requires the Company to work with a specified artist or other individual, the Client shall make all necessary arrangements, make all necessary payments (including rights and clearance payments) and enter into all necessary contracts with the relevant artist and/or other individual to enable the Company to work with the artist and/or other individual at the dates and times agreed by the Company and the Client in writing.
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4.2. The Client warrants that the Client shall only provide copies of the Client Assets to the Company and that the Client will retain the original master copy of all Client Assets. The Client shall never provide original or the only copy of Client Assets to the Company and the Company excludes all liability for losses, costs, actions and expenses arising from the failure by the Company to comply with this clause.
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4.3. The Client hereby agrees to indemnify and hold harmless the
Company on demand and agrees at all times keep the Company fully indemnified against all actions, proceedings, costs (including reasonable outside legal costs and disbursements), claims and damages whatsoever incurred by and/or awarded against and/or compensation agreed by the Company arising from any breach or non-performance or non-observance by the Client of any of the representations, warranties, undertakings and agreements by the Client in this Agreement.
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5. CLIENT DELAYS AND CHANGES TO FILMING SCHEDULES
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5.1. If the filming schedule agreed by the parties is delayed or aborted due to the Client’s failure to adhere to the agreed dates, times, access, facilities, organisation or any other matter specified in the Order, the Company reserves the right to reschedule the affected days of filming and to charge any additional costs which arise and/or additional days. No refund or credit will be given to the Client in respect of costs associated with the delayed or aborted original filming day(s).
5.2. If the Client wishes to change or cancel a filming date, the Client must provide the Company with a minimum of 3 weeks’ advance notice. Failure to provide such notice will result in the Client being liable for 100% of all costs associated with the amended or aborted dates.
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6. Edits
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6.1. The Company will provide a client online portal for private viewing of the Products by the Client.
6.2. Unless otherwise agreed in the Order, one ‘first cut’ edit will be available to the Client for review and comment. One set of minor revisions or edits will be incorporated within the agreed charges set out in the Order provided that any revisions or amendments are in accordance with the agreed Production Brief.
6.3. Subsequent revisions, significant re-edits or amendments which are not in accordance with the Production Brief will be charged at a rate of £350 per day or, at the Company’s discretion, £45 per hour.
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7. Charges
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7.1. The Company reserves the right to increase the price of the Services, by giving notice to the Client at any time before delivery to reflect any:
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a.) increase in the scope or cost of the Services due to any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
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b.) request by the Client to change the delivery date(s), quantities or types of Services (including a change or increase in the number of filming days or amendment to the Production Brief as set out in clause 5); or
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c.) any delay caused by the Client in respect of the Services (including failure to deliver the Client Assets by the agreed date or failure to make arrangements with location and/or artistsand/or other individual at dates previously notified to the Company) or failure of the Client to give the Company adequate or accurate information or instructions in respect of the Services and/or the Client Assets.
7.2. Filming days required by the Client in addition to those noted in an Order will be charged at the Company’s then current daily rate.
7.3. Unless otherwise stated in the Order, the Company shall invoice the Client on a [weekly/monthly] basis or in accordance with the payment schedule set out in the Order.
7.4. The Client shall pay each invoice submitted by the Company within thirty (30) days of the date of the invoice in full and in cleared funds to a bank account nominated in writing by the Company. Time for payment shall be of the essence of the Contract.
7.5. All amounts payable by the Client are exclusive of amounts in respect of value added tax chargeable from time to time (VAT) which shall be payable by the Client on receipt of a valid VAT invoice from the Company.
7.6. If the Client fails to make a payment due to the Company by the due date, then, without limiting the Company's remedies under clause 11, 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 7.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time.
7.7. 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).
8. Intellectual Property Rights
8.1. For the purpose of this clause 8, Intellectual Property Rights shall mean copyright and neighbouring and related rights, performing rights, moral rights, trade marks, rights in designs, rights in computer software, database rights, and all other intellectual property rights, in each case whether registered or unregistered 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.
8.2. All Intellectual Property Rights in any materials owned by the Company prior to the date of the Order and the Products (save insofar as the Products include the Client Assets) shall be retained by the Company. Nothing in this Contract shall restrict the right of the Company to use such materials in any way, including with other clients of the Company.
8.3. All Intellectual Property Rights in the Client Assets shall be retained by the Client.
8.4. The Company grants to the Client an unconditional, irrevocable, royalty free, perpetual licence to use the Deliverables in connection with the Project throughout the world in all media and all languages. The Client is not permitted to alter, edit, copy or use the Deliverables in any way save as contemplated in the Order and the Deliverables (or any part thereof) shall not be used by the Client as part of another production or project unless expressly permitted in writing in the Order.
8.5. The Client grants to the Company a non-exclusive unconditional, irrevocable, royalty free licence during the Term to copy, edit, adapt and modify the Client Assets for the purpose of providing the Services and creating the Deliverables.
8.6. The Client shall be responsible for obtaining all clearances, permissions and licences required from third party Intellectual Property Right owners for the use of the Client Assets by the Company and the copying, publication and exploitation of the Deliverables by the Client. The Company shall not be responsible for obtaining any third party licences or clearances in connection with the Client Assets or the Deliverables.
8.7. The Company shall be entitled to promote the fact that the Company provided services to the Client in connection with the Project and to use the Products in Company showreels, on the Company’s website and in connection with other Company promotional materials.
9. Confidentiality
9.1. Each party undertakes that it shall not during the Term and for a period of five (5) years thereafter disclose to any person any confidential information concerning this Agreement, the Client Assets, the business, affairs, clients or customers of the other party except as permitted by clause 3.2.
9.2. Each party may disclose the other party's confidential information:
a.) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 9; and
b.) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
10. Limitation of Liability
10.1. The Company has obtained public liability insurance cover in respect of its own legal liability for individual claims. Specific project insurance cover can be provided if required upon request, at an additional cost to the Client, provided this is agreed at the time of booking and included in the Order.
10.2. The Client shall add the Company as a loss payee to its errors and omissions liability insurance policy for the Project.
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10.3. Nothing in the Contract limits any liability for death or personal injury caused by negligence or fraud or fraudulent misrepresentation
10.4. The Company's total liability to the Client shall not exceed the Order value.
10.5. The Company excludes liability for all indirect or consequential losses including loss of profits, loss of sales or business, loss of anticipated savings, loss of use or corruption of software, data or information and damage to goodwill.
10.6. This clause 10 shall survive termination of the Contract.
11. Termination
11.1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
a.) the other party commits a material breach of its obligations under the Contract or if such breach is remediable fails to remedy that breach within seven (7) days after receipt of notice in writing to do so;
b.) 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), obtaining a moratorium, 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
c.) 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.
11.2. Without affecting any other right or remedy available to it if the Client fails to pay any amount due under the Contract on the due date for payment., the Company may:
a.) terminate the Contract with immediate effect by giving written notice to the Client; or
b.) suspend the supply of Services or delivery of the Deliverables until the due amount is paid.
12. Consequences of termination
12.1. On termination of the Contract:
a.) the Client shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services provided but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client on receipt; and
b.) the Company shall return to the Client all Client Assets.
12.2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry.
12.3. Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
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13. Force majeure
13.1. 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 (a Force Majeure Event). 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 8 weeks, the party not affected may terminate the Contract by giving 30 days written notice to the affected party.
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14. Data Protection
14.1. The Company is the data controller in relation to any personal data provided by the Client to the Company, such as the name and addresses of Client personnel (“Personal Data”). The Company will receive and process the Personal Data in order to manage and administer this Contract and the production and delivery of the Deliverables in furtherance of its legitimate business interests in relation to the Services, to comply with legal, regulatory and contractual obligations and to exercise or defend its legal rights. In so doing, the Company may disclose the Personal Data to third parties (e.g. the Company's suppliers, insurers and professional advisors, or potential buyers of the Company's business), who may be based outside the United Kingdom or European Economic Area. The Company's practice is to require third party suppliers to put in place measures to respect UK and European data protection laws, such as the European Commission approved data transfer agreements. The Company will hold the Personal Data for so long as is necessary to fulfil the above purposes. Individuals have rights under UK data protection law, for example the right to request access to their personal information or to request correction of their information. Individuals also have a right to lodge a complaint with the Information Commissioner's Office.
15. General
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15.1. Notices. Any notice 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). Any notice shall be deemed to have been received:
a.) if delivered by hand, at the time the notice is left at the proper address;
b.) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
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c.) if sent by email, at the time of transmission provided that the sender does not receive an automated response noting that the message has not been received by the recipient, or, if this time falls outside business hours in the place of receipt, when business hours resume. 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.
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d.) 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.
15.2. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted and the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
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15.3. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract 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
15.4. No partnership or agency. Nothing in the Contract shall be deemed to establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
15.5. 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.
15.6. Third party rights. 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.
15.7. Variation. No variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
15.8. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim in connection with the Contract or its subject matter or formation.
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