In this document the following words shall have the following meanings:
1.1 “Agreement” means these Terms and Conditions together with the terms of any applicable Service Specification, Proposal, Estimate or Quote;
1.2 “Customer” means the organisation or person who engages or purchases services from Blue Sky Event & Media;
1.3 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 “Service Specification, Proposal, Estimate or Quote” means a statement of work, quotation or other similar document describing the services to be provided by Blue Sky Event & Media;
2.1 These Terms and Conditions shall apply to all contracts for the supply of services by Blue Sky Event & Media to the Customer.
2.2 Before the commencement of the services Blue Sky Event & Media shall submit to the Customer a Service Specification, Proposal, Estimate or Quote which shall specify the services to be performed and the fees payable. The Customer shall notify Blue Sky Event & Media immediately if the Customer does not agree with the contents of the Service Specification, Proposal, Estimate or Quote. All Service Specification, Proposal, Estimate or Quotes shall be subject to these Terms and Conditions.
3.1 Blue Sky Event & Media shall invoice the Customer for the services as set out in the Service Specification, Proposal, Estimate or Quote.
3.2 Invoiced amounts shall be due and payable within 30 days of receipt of invoice Blue Sky Event & Media shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of three percent per annum above the base rate of the Bank of England. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order for payment, the Customer shall be responsible for issuing such purchase order before the services are rendered.
4. CUSTOMER’S OBLIGATIONS
4.1 To enable Blue Sky Event & Media to perform its obligations under this Agreement the Customer shall:
4.1.1 co-operate with Blue Sky Event & Media;
4.1.2 provide Blue Sky Event & Media with any information reasonably required by Blue Sky Event & Media;
4.1.3 obtain all necessary permissions and consents which may be required before the commencement of the services; and
4.1.4 comply with such other requirements as may be set out in the Service Specification, Proposal, Estimate or Quote or otherwise agreed between the parties.
4.2 The Customer shall be liable to compensate Blue Sky Event & Media for any expenses incurred by Blue Sky Event & Media as a result of the Customer’s failure to comply with Clause 4.1.
4.3 Without prejudice to any other rights to which Blue Sky Event & Media may be entitled, in the event that the Customer unlawfully terminates or cancels the services agreed to in the Service Specification, Proposal, Estimate or Quote, the Customer shall be required to pay to Blue Sky Event & Media as agreed damages and not as a penalty the full amount of any third party costs to which Blue Sky Event & Media has committed and in respect of cancellations on less than five working days’ written notice the full amount of the services contracted for as set out in the Service Specification, Proposal, Estimate or Quote, and the Customer agrees this is a genuine pre-estimate of Blue Sky Event & Media’s losses in such a case. For the avoidance of doubt, the Customer’s failure to comply with any obligations under Clause 4.1 shall be deemed to be a cancellation of the services and subject to the payment of the damages set out in this Clause.
4.4 In the event that the Customer or any third party, not being a sub-contractor of Blue Sky Event & Media, shall omit or commit anything which prevents or delays Blue Sky Event & Media from undertaking or complying with any of its obligations under this Agreement, then Blue Sky Event & Media shall notify the Customer as soon as possible and:
4.4.1 Blue Sky Event & Media shall have no liability in respect of any delay to the completion of any project;
4.4.2 if applicable, the timetable for the project will be modified accordingly;
4.4.3 Blue Sky Event & Media shall notify the Customer at the same time if it intends to make any claim for additional costs.
5. ALTERATIONS TO THE SERVICE SPECIFICATION, PROPOSAL, ESTIMATE OR QUOTE, AGREED PROPOSAL, ESTIMATE OR QUOTE
5.1 Work shall be carried out in accordance with a mutally agreed Service Specification, Proposal, Estimate or Quote, Proposal, Estimate or Quote.
5.2 The Customer may at any time request alterations to the Service Specification, Proposal, Estimate or Quote, Proposal, Estimate or Quote by notice in writing to Blue Sky Event & Media. On receipt of the request for alterations Blue Sky Event & Media shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the fees and any other terms already agreed between the parties.
5.3 Where Blue Sky Event & Media gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise Blue Sky Event & Media by notice in writing whether or not it wishes the alterations to proceed.
5.4 Where Blue Sky Event & Media gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Service Specification, Proposal, Estimate or Quote shall be amended to reflect such alterations and thereafter Blue Sky Event & Media shall perform this Agreement upon the basis of such amended terms.
5.5 Blue Sky Event & Media reserves the right to make additional charges to the Customer in instances of:
5.5.1 Change of delivery time
5.5.2 Additional workload necessitating additional expenses and/or hours of services
5.5.3 Change of requirement necessitating additional expenses and/or hours of services
5.5.4 Late delivery of supplied materials, reference, goods or service supplied by the customer, as required to deliver the agreed work to the customer
5.5.5 Any change of circumstance brought about by the Customer which necessitates additional work and/or work carried out by Blue Sky Event and Media or its contractors after 6pm on Monday, Tuesday, Wednesday, Thursday and Friday, or at any time during a Saturday or Sunday.
5.6 Where the customer prevents the progress of production by failing to respond to a feedback request or supply information or media assets as requested by Blue Sky Event & Media, for a period of 30 calendar days or more, Blue Sky Event & Media reserves the right to charge for all work carried out up to that date, irrespective of any prior agreed charging schedule.
5.7 The Service Specification, Proposal, Estimate or Quote, Proposal, Estimate or Quote for Video Production supplied to the Customer, unless otherwise stated, shall allow for:
5.7.1 The production of one offline edit, mastering, encoding and delivery to the customer through either physical media or online delivery.
5.7.2 Two sets of changes, to be made to the offline or narrative edit based upon Customer review and feedback to Blue Sky Event & media
5.7.3 The production of one master edit, this being the finished programme, including mastering, encoding and delivery to the customer through either physical media or online delivery.
5.7.4 Additional offline or online edits brought about through review and feedback from the Customer shall incur additional charges based upon a pro rata rate.
6.1 Blue Sky Event & Media warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
6.2 Without prejudice to Clause 6.1, and except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the services to be provided by Blue Sky Event & Media.
The Customer shall indemnify Blue Sky Event & Media against all claims, costs and expenses which Blue Sky Event & Media may incur and which arise, directly or indirectly, from the Customer’s breach of any of its obligations under this Agreement, including any claims brought against Blue Sky Event & Media alleging that any services provided by Blue Sky Event & Media in accordance with the Service Specification, Proposal, Estimate or Quote infringes a patent, copyright or trade secret or other similar right of a third party.
8. LIMITATION OF LIABILITY
8.1 Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of Blue Sky Event & Media to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the fees paid by the Customer to which the claim relates.
8.2 In no event shall Blue Sky Event & Media be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or Blue Sky Event & Media had been made aware of the possibility of the Customer incurring such a loss.
8.3 Nothing in these Terms and Conditions shall exclude or limit Blue Sky Event & Media’s liability for death or personal injury resulting from Blue Sky Event & Media’s negligence or that of its employees, agents or sub-contractors.
Either party may terminate this Agreement forthwith by notice in writing to the other if:
9.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
9.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
9.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
9.4 the other party ceases to carry on its business or substantially the whole of its business; or
9.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
9.6 Should the customer terminate this agreement at any point in the production schedule where Blue Sky Event & Media has not committed a material breach of this agreement, Blue Sky Event & Media reserves the right to immediately charge for the full contract value, irrespective of any prior agreed charging schedule.
10. INTELLECTUAL PROPERTY RIGHTS
10. 1 All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of Blue Sky Event & Media, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in Blue Sky Event & Media by the execution of appropriate instruments or the making of agreements with third parties.
10.2 Intellectual Property Rights for all programme treatments, scripts, storyboards, concepts and ideas created by Blue Sky Event & Media shall remain the property of Blue Sky Event & Media for all time.
10.3 Intellectual Property Rights for all media used in the final production and created by Blue Sky Event & Media shall pass to the Customer upon full and final payment for the production.
10.4 Blue Sky Event and Media reserves the right to use all or part of any production for the purposes of demonstration and promotion of the services of Blue Sky Event & Media, in any media format.
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
12. INDEPENDENT CONTRACTORS
Blue Sky Event & Media and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. Blue Sky Event & Media may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve Blue Sky Event & Media of its obligations under this Agreement.
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of Blue Sky Event & Media.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Service Specification, Proposal, Estimate or Quote or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
19. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
Blue Sky Event & Media
(Trading as Blue Sky Film & Media)
Cheltenham Film Studios
Tel. 01242 506422
Company No: 3948162
Blue Sky Event & Media 2017