1. Interpretation

1.1 Definitions:

Business Hours: 9am to 5pm on any day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. Contract: the contract between the Supplier and the Client for the supply/delivery of Services, consisting of the Quote and/or Order and these Terms & Conditions. Rights: copyright, design and all other intellectual property or other right, title and/or interest of any nature whatsoever subsisting now or in the future in any part of the world.

2. Basis of contract

2.1 The Order constitutes an offer by the Client to purchase the Services of the Supplier in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).

2.3 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.

2.4 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of thirty (30) from its date of issue.

2.5 Any reference to the Supplier shall also apply to all of the Supplier’s personnel, contractors, employees, workers and affiliates.

3. Supply of Services

3.1 The Supplier shall supply the Services to the Client in accordance with the Quote in all material respects including (where applicable) the delivery of any deliverables described in the Quote (the “Deliverables”).

3.2 The Supplier reserves the right to amend the Quote 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.

3.3 Any changes or additions to the Services or these Conditions must be agreed in writing by the Supplier. If the Services change from those described in the Quote then the Supplier shall be entitled to increase its fees due hereunder.

4. Client’s obligations

4.1 The Client warrants and represents that it shall:

(a) fully co-operate with the Supplier in all matters relating to the Services;

(b) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects and compatible with the Supplier’s technical systems;

(c) where applicable, prepare the Client’s premises for the supply of the Services;

(d) obtain, pay for and maintain all Clearances in accordance with clause 4.2 below.

Furthermore, the Client will indemnify, defend and hold harmless the Supplier against all claims, liabilities, damages, costs and expenses, including reasonable professional fees and expenses, including but not limited to claims arising out of or relating to:

(i) material furnished to the Supplier by Client;

(ii) following specific instructions of the Client; and

(iii) the Client’s failure to obtain Clearances for any third-party Rights in accordance with clause 4.2 below;

(e) keep all materials, equipment, documents and other property provided the Supplier (“Supplier Materials”) in safe custody at the Client’s own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;

(f) make no use of the product of the Services and/or the Deliverables without having paid in full the Fee and all other sums due to the Supplier under the Contract; and

(g) ensure the Supplier’s company name, image, trademark or other identifying information is not be used in print or social media in conjunction with the supply/delivery of Services or the Production without prior written approval of the Supplier. Any use on social media or digital use must include the Supplier’s approved handles and hash tags.

4.2 a) The Client shall obtain, pay for and maintain all necessary licences, releases, permissions and consents which may be required for the Services and/or the Production (and the promotion, exploitation and distribution thereof) in connection with the use of any names, likenesses, trademarks, copyrighted material (including but not limited to all master sound recordings or musical compositions) or other third-party materials and any Rights therein that appear or are delivered to the Supplier for use as part the Services and/or the Production (and the promotion, exploitation and distribution thereof) (together “Clearances”).

b) Notwithstanding clause 4.2(a) above, in the event that the Services are specifically for the Supplier’s music supervision services as indicated in the Quote, then the parties may agree (such agreement to be indicated in the Quote) that it is the responsibility of the Supplier to obtain the necessary Clearances in respect of any agreed master sound recordings or musical compositions (subject to the Supplier securing a separate contract with the relevant third party rights holder (a “Third Party Licence”)). For the avoidance of doubt, the Client shall be the contracting party in respect of 3 HB/K258/002 any Third Party Licence and shall be solely responsible for any payments associated therewith.

4.3 If the performance of any 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”):

a) without limiting or affecting any other right or remedy available to it, the Supplier 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 obligations in each case to the extent the Client Default prevents or delays the performance of any obligations;

b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the failure or delay to perform any obligations as set out in this clause 4.3; and

c) the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.

5. Charges and payment

5.1 The Fee and payment terms are as referred to in the Quote and set out in the Order. The Fee is subject to change as a result of a request of the Client or as confirmed by the Supplier in writing. In such circumstances;

(a) the Supplier shall be entitled to charge an hourly overtime rate for any time worked by individuals involved in the provision of Services in excess of a ten-hour day at the rate of (i) £600 per hour on any week day (Monday-Friday excluding bank holidays) before 9am and after 6pm and

(ii) £800 per hour on a Saturday or Sunday or a bank holiday;

(b) the Supplier shall be entitled to charge the Client for any expenses reasonably incurred by individuals involved in the provision of the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials;

(c) the Fee and all other sums due will be charged and remain payable whether or not Client chooses to use the product of the Services and/or the deliverables.

5.2 All amounts payable by the Client under the Contract are exclusive of amounts inrespect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier 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.

5.3 If the Client fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 7, 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 5 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%.

6. Limitation of liability

6.1 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

6.2 Nothing in this clause 6 shall limit the Client’s payment obligations under the Contract.

6.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:

(a) death or personal injury caused by negligence; and

(b) fraud or fraudulent misrepresentation.

6.4 Subject to the other provisions of this clause 6 the Supplier’s total liability to the Client for all loss or damage shall not exceed 100% of the VAT exclusive fee actually received by the Supplier from the Client in respect of the Services.

6.5 Subject to the foregoing this clause 6.5 sets out the types of loss that are wholly excluded:

(a) loss of profits;

(b) loss of sales or business;

(c) loss of agreements or contracts;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; and

(g) indirect or consequential loss.

6.6 The Supplier’s liability in respect of loss of or damage to the Client’s soundtapes, files, videotapes or similar material will be limited to the value of the bare soundtape, videotape, backup file or similar material and no liability whatsoever shall attach to the Supplier in respect of the loss of or damage to material recorded on such sound files, video or similar material stored by the Supplier.

7. Cancellation and termination

7.1 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Client if the Client commits a material breach of any term of the Contract and fails to remedy that breach within seven (7) days of being notified of such breach.

7.2 If an Order is cancelled or postponed by the Client after the Commencement Date for any reason the Contract shall be deemed to be terminated and following cancellation fees will apply:

(i) If Client cancels with more than eight Business Hours prior to the commencement of the Services specified, no cancellation fees apply;

(ii) If Client cancels with eight or less Business Hours’ notice prior to the commencement of the Services specified in the Quote, the Client agrees to pay 100% of the Fee and all expenses incurred up until the time of cancellation or postponement and those that are committed to at that time and cannot be cancelled.

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8. Consequences of cancellation and termination

8.1 On cancellation or termination of the Contract:

(a) the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, any cancellation fee due in accordance with clause 7.2, and in respect of any Services supplied and expenses incurred, including those and those that are committed to at that time and cannot be cancelled, but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;

(b) the Client shall return all of the Supplier Materials and any deliverables which have not been fully paid for. 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.

8.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 All intellectual property rights in or arising out of or in connection with the Services (other than the intellectual property rights in any materials provided by the Client) shall be exclusively owned by the Supplier. Furthermore, where a sound recording, musical composition or sound design has been produced and/or created by the Supplier hereunder, any and all intellectual property and/or copyright and/or other rights (whether now known or in the future created) in and to the aforementioned recording, musical composition or sound design shall be the sole and exclusive property of the Supplier to hold absolutely throughout the universe in perpetuity.

1.1 In respect of the Supplier’s sound design services, the Supplier hereby licences to the Client on a non-exclusive basis, the right to record, copy, reproduce, transmit and perform the Deliverables (or any part thereof), for the in-context use in the Production (including the exploitation, promotion and marketing thereof) throughout the world in all media in perpetuity.

1.2 Notwithstanding clause 9.2 above, where the Services relate to the Supplier’s provision of music editing services (including the provision demo recordings), any use, exploitation, reproduction, transmission or distribution of the Deliverables required by the Client (including as part of the Production) shall be subject to separate licence agreement between the parties (to be negotiated in good faith and in line with industry standard terms).

10. General

10.1 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 (including but not limited to acts of god, natural disasters, medical epidemics or pandemics (including COVID-19), civil unrest or war).

10.2 Severance. If a provision of the Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Conditions and the remainder of the provision in question shall not be affected thereby.

10.3 Assignment and other dealings. Unless otherwise agreed by the Supplier, the Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

10.4 Confidentiality. Each of the Client and the Supplier agrees that all information of a confidential nature regarding the business and activities of the other, the Services or the Production shall be treated as strictly confidential and shall not be published disclosed or circulated to any third party (save for the parties’ professional advisors) Provided That the Client agrees that the Supplier shall be entitled to refer to the Services for marketing or publicity purposes and the Client acknowledges and agrees that the Supplier is free to use a product of the Services and/or the Deliverables for self-promotional purposes, or authorising others to do so, such as in the Supplier’s online portfolio or a book, exhibition or anthology. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

10.5 Lost or Stolen Merchandise. In no event shall the Supplier be responsible for any lost or stolen merchandise or property of the Client

10.6 Entire agreement. The Contract constitutes the entire agreement between the parties in respect of the provision of the Services and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

10.7 Variation. 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).

10.8 Waiver. 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.

10.9 Third party rights. The Artist shall be able to enforce the terms of the Contract in its own name and subject to such right 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.

10.10 Governing law & Jurisdiction. 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 5 HB/K258/002 both parties shall submit to the exclusive jurisdiction of the courts of England and Wales.