1. TERMS OF SERVICE
1.1 These terms of service, together with the information contained within the agreed order (and in the case of a retainer the specific terms of that retainer) will form a binding contract between Ouno Media Ltd (“We/Our/Us”) and the party (“You/Your”) who orders Photography and Video Production Services from Us and shall constitute the entire agreement between You and Us and apply to any trading agreement or other contract or arrangement between You and Us. 1.2 These terms apply to the exclusion of all other terms or conditions of contract You may propose and shall not be varied unless agreed in writing and signed by Us.
2. DEFINITIONS
2.1 For the purposes of this agreement, the following expressions shall have the following meanings:
“Client Content” shall mean all materials and third party services provided by You to Us for inclusion into or in conjunction with the Visual Content.
The “Fees” shall mean the rate of payment for the provision of Photography, Video Production and VFX Services by Us to You as is communicated to You either through Our website or by any other means. The Fees shall include any third party Fees payable in the creation of the Visual Content.
“Total Fees Estimate” shall mean any estimate of the Fees for undertaking Photography and Video Production Services given to You by Us.
“The Delivery Date” shall mean the date agreed by You and Us for delivery of the Visual Content.
“Visual Content” shall mean any photographic, graphic design or other visual media works requested by You and supplied by Us in accordance with this agreement.
“Photography and Video Production Services” shall refer to the act of producing the Visual Content requested by You, including filming services, and supplied by Us in accordance with this agreement.
“VFX Services” shall refer to the act of producing the Visual Effects and Motion Graphics Content requested by You and supplied by Us in accordance with this agreement.
The “Shoot Date” shall mean the date agreed by You and Us upon which any photographic material which forms part of the Photography and Video Production Services will be created.
3. CONFIRMATION & BOOKING
3.1 In consideration of the payment by You to Us of the Fees, We agree to create the Photography and Video Production Services in accordance with the quote/proposal in writing (including email), with reasonable and due care in accordance with and subject to these terms.
3.2 We shall use best endeavours to ensure that the Visual Content shall be faithful to the conceptualisation of the works, pitch or proposal and follow the same standards of quality.
3.3 Written acceptance of a proposal acts as an acceptance of these Terms of Service and a contract shall be created between You and Us for the supply of the Photography and Video Production Services.
3.4 You assume sole responsibility for ensuring that the Photography, Video Production, VFX and Motion Graphics Services described in any proposal meets its requirements before acceptance of the proposal.
3.5 For Photography, Video Production, VFX and Motion Graphics Services, a non-refundable deposit is required together with acceptance of the proposal for all ad-hoc work. The deposit covers Our agreed loss in the event of a cancellation of a booked Shoot Date. Where a Shoot Date is to be postponed to a later date We will retain the deposit as long as the We can reschedule for the new date and time.
3.6 We are not obliged to carry out any work before the deposit is received. In the event that any preliminary work is carried out prior to receipt of the deposit and the order is then cancelled We will invoice You for this work.
3.7 All quotes are valid for thirty (30) days unless otherwise agreed or stated.
3.8 Your requirements must be clearly provided in the form of a written brief to Us with at least 48 hours notice before commencement of any work.
3.9 Any contract requiring Us to work to specific deadlines provided within the written agreement will be deemed to include a proviso that You will make yourselves reasonably available to communicate with Us, Our servants or Our agents, as necessary. While We will endeavour to meet any deadlines time shall not be of the essence for the performance of the Photography and Video Production Services and there may be instances where circumstances beyond Our control prevent deadlines being met. In these circumstances We will keep You fully updated on progress.
3.10 Mileage will be charged at £0.45 per mile for the total return journey from the base of each Ouno Media team member. Beyond two hours of travelling, an additional hourly rate will be charged at £60.00 per hour.
If more than 3 hours of driving is required, a half-hour safety stop will be added to the travel time for each 3 hour period.
4. COOPERATION
4.1 You will cooperate with and act in good faith towards Us and provide on request such source materials as are required to create the Visual Content (“Client Content”) as We are to incorporate into the Visual Content or We require to carry out Our obligations. You shall further promptly provide all other information and assistance (including access) as We shall reasonably request in providing the Photography and Video Production Services.
5. PAYMENT
5.1 You shall pay Us the Fees without deduction or set off within 30 days of receipt of a valid invoice or within the timeframe stipulated on that invoice if different.
5.2 You shall provide Us with all such information and material as We may reasonably request for the purpose of generating a valid invoice for payment of the Fees, including, where required, the provision of purchase order references within the period of two (2) days following the Shoot Date or delivery of Visual Content.
5.3 Any Total Fees Estimate communicated to You by Us is an estimate only. The Fees shall be set on the basis set out by Us and may be less than, or more than, the Total Fees Estimate.
5.4 We may charge additional Fees in accordance with its then prevailing rates in the event of:
5.4.1 Delays or additional works caused or required by You including its failure to properly and / or timeously provide Us with such information, Client Content, instructions, media or approvals as are reasonably required for the supply of the Visual Content;
5.4.2 Changes to the cost of labour, materials, services and other circumstances outside of Our reasonable control.
5.4.3 You requiring the supply of Visual Content, goods and services in addition to those requested or any variations to the Visual Content;
5.4.4 Agreed third party expenses.
5.5 In the event that You require any change or alteration to the Visual Content (“Change”), You and We shall, prior to such Change being effective or implemented, agree:
5.5.1 The nature of the Change;
5.5.2 The procedures for implementation of such Change; and
5.5.3 The variation to the Fees.
5.6 Until any Change is formally agreed between You and Us, We will continue to perform and be paid for the Visual Content as if the Change had not been proposed, unless otherwise requested by You.
5.7 All and any Changes to the Visual Content shall be accompanied by appropriate amendments to the Fees.
5.8 For the avoidance of doubt We shall not be obliged to agree to any Change.
5.9 We shall be entitled to charge interest on any overdue payment at the rate of 4% over the base rate of the Bank of England at the time.
5.10 Payments of the Fees for all contracted work will be taken as a straight direct debit.
5.11 Payment of Fees for all ad hoc project work can be made through BACS, CHAPS or online via the Stripe payment gateway integrated into invoices (if applicable).
6. COPYRIGHT & CONFIDENTIALITY
6.1 All copyright, design right, registered designs, trademarks, database rights and confidential information and ideas and all other rights whatsoever of a like nature worldwide whether registered or not of whatever nature in material devised, created or commissioned by Us in supplying the Visual Content and under this Agreement (“Intellectual Property”) will vest in and belong to Us unless otherwise agreed in writing and signed by both You and Us. We may include within the Visual Content reasonable copyright notice and credit.
6.2 We hereby grant You an agreed world wide web display usage license throughout the Internet and an agreed UK, world or any single country print/digital license in respect of the Intellectual Property and any media usage licenses shall be conditional upon receipt by Us of the Fees. In the event that the Fees are not paid, or if You reject the Visual Content, the license granted in this clause 6.2 shall not arise and any use of the Intellectual Property shall be an unlawful use.
6.3 The license granted above shall apply only to the Intellectual Property in the Visual Content which We are specifically requested to proceed with and not to any of Our original ideas, concepts or proposals pitched or suggested to You, all of which shall be retained by Us.
6.4 We shall use reasonable endeavours to obtain Your approval for the use of the Visual Content otherwise than as stipulated under this agreement. In the event that You are contacted with such a request, the approval requested may be withheld by You on reasonable grounds. In the event that Our endeavours to contact You are unsuccessful or if the approval for use of the Visual Content by Us is withheld without You setting out reasonable grounds for withholding that approval, We shall be entitled to use the Visual Content without further reference to You. Nothing in this clause shall give Us any right to grant further licenses to use the Visual Content in relation to any third party.
6.5 You grant Us a non-exclusive royalty free license to use the Client Content for all purposes relating to this Agreement and warrant that You are fully entitled to grant Us these rights and that the Client Content is free of racist, defamatory, obscene and other legally restricted material.
6.6 You undertake to indemnify Us and hold Us harmless in full and defend Us at Your own expense against all costs, damages and losses incurred by it arising out of Our use of the Client Content.
6.7 Each Party undertakes that it will keep secret and confidential any information supplied by either party in connection with this Agreement or in connection with the business of the other and in connection with the Visual Content and shall only disclose such information or part thereof (except to its own employees and advisers and then only on a need to know basis) with the other party’s prior written consent provided that this clause shall not extend to information which was and can be shown to be rightfully in the possession of the relevant Party prior to the commencement of the negotiations leading to this Agreement or which is in the public domain (other than as a result of a breach of this clause);
6.8 We warrant that We will use reasonable efforts to ensure that the Visual Content does not infringe the copyright of any third party.
7. DELIVERY, INSPECTION AND ACCEPTANCE
7.1 We shall, on or before the Delivery Date, provide the Visual Content to You via online transfer, as agreed between You and Us. If You require delivery of the Visual Content in any other format or by any specified method of delivery, You shall meet such additional costs (if any) incurred by reason of that requirement.
7.2 Photographic or other visual material shall only be treated as being defective if both You and Us agree that the Visual Content is below the specific resolution communicated by the You to Us (if any) or any commonly observed specific requirements as are suitable for the required media in which the Visual Content is intended to appear.
7.3 You shall not be entitled to claim that the Visual Content is defective if:
7.3.1 You have already approved the Visual Content, including by email.
7.3.2 You or Your directors, agents, employees or any other person acting under Your instructions has been active in the art direction applied to the Visual Content.
7.4 You shall inspect the Visual Content upon delivery and shall notify Us immediately if You wish to claim that the Visual Content is defective whereupon We shall, if such defect is proved, be given 5 days within which to remedy the same.
7.5 In the event that it is not possible for Us to remedy any defect in the Visual Content and before any deadline set by a third party for the delivery of the Visual Content by You, You shall be entitled to reject the Visual Content and to withhold Payment of the Fees.
7.6 If You fail to alert Us of any defects in the Visual Content within five (5) days of delivery then You shall be deemed to accept the Visual Content.
7.7 You shall have no right to seek any cancellation or repayment of job costs on the basis of style or composition.
7.8 Settling an invoice and downloading or making use of any Visual Content supplied by Us, are all considered acceptance of Visual Content.
8. CONTRACTED WORK
8.1 For all work carried out under a retainer separate terms apply. Where there is a conflict between any terms of the retainer and any of these terms of service then the terms of the retainer shall prevail.
9. LIMITATION OF LIABILITY
9.1 Our liability for any loss or damage direct or otherwise and howsoever caused whether in contract, tort or otherwise shall not exceed the Fees invoiced by Us to You for the Visual Content.
9.2 Nothing in these terms of service shall limit the liability of either party for death or personal injury caused by its negligence.
9.3 We shall not be liable to You for any consequential loss or damage.
9.4 When instructions or advice are given or received orally by Us, We shall have no liability to You for any misunderstanding or misrepresentation, which may arise in relation thereto except in relation to fraudulent misrepresentations.
9.5 We shall have no liability to You in respect of the Client Content. On completion of the Visual Content You agree to collect the Client Content within 60 days of completion of the works, failing which, We may dispose of the Client Content.
9.6 We agree that every effort will be made to provide high quality Visual Content. In the unlikely event that a full mechanical failure should occur to Our equipment or that We are unable to provide You with the agreed Photography and Video Production Services or if the quality of the Visual Content is deemed to be substandard, You and We agree that We are not responsible for any other consequential damages and that Our liability shall be limited to a full refund of all monies paid.
9.7 You agree to accept the technical results of Your imposition on Us of any specific instructions. Negotiation with any officials for moderation of guidelines is Your responsibility.
9.8 Once You have the Visual Content, it is Your responsibility to properly store and archive it. While We may choose to archive the Visual Content as part Our own business practices, We cannot guarantee the availability of any Visual Content beyond the date of first delivery to You.
10. THIRD PARTY MATERIALS
10.1 You shall be responsible for and notify Us of all and any applicable rules, regulations, codes of practice and laws relating to the use and operation of the Visual Content including without limitation any obligations under the General Data Protection Regulation (EU) 2016/679; Regulation of Investigatory Powers Act 2000; Competition Act 1998; Disability Discrimination Act 1995 and any equivalent legislation. We shall not be liable to You in relation to such legislation and give no warranty, representation or undertaking in relation thereto, unless agreed in writing otherwise.
10.2 We give no warranty, representation or undertaking in relation to any third party materials or works.
10.3 Subject to and provided that We act in accordance with clause 6 above, You agree that You are responsible for Your selection and use of all Visual Content and contracting with any third parties in relation thereto and that You shall be responsible for making reasonable enquiries into the copyright and like rights in any Visual Content.
10.4 Subject to the foregoing We shall have no liability to You whatsoever in relation to the Visual Content and give no warranty and make no representation as to whether Visual Content contain or are free from racist, defamatory, sexually explicit, inflammatory, obscene or other legally restricted material and explicitly exclude all and any liability in relation thereto.
11. CANCELLATION
11.1 We shall be entitled to terminate this Agreement upon Your material breach (including without limitation non-payment of any sum due) unless You remedy such breach within 7 days of its occurrence.
11.2 We will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency beyond Our reasonable control including without limitation Internet outages, communications outages, war, Government Stipulation or act of God.
11.3 In the event that You wish to cancel the Photography and Video Production Services (save in the event of a material breach by Us of a fundamental term of this Agreement) at any time, We shall be entitled to recover the following proportions of the Fees:
11.3.1 Where such cancellation is communicated to Us more than 48 hours in advance of any Shoot Date (or in the case of non-photographic Visual Content within 48 hours of acceptance of a proposal), We shall not be entitled to any proportion of the Fees other than the amounts for non-redeemable items such as Location Hire, Hotels, Props and Models;
11.3.2 Where such cancellation is communicated to Us within the period between 48 hours and 24 hours in advance of the Shoot Date, We shall, at Our option, be entitled to recover 50% of the Fees plus amounts for non-redeemable items such as Location Hire, Hotels, Props and Models;
11.3.3 Where such cancellation is communicated to Us within the period of 24 hours before the Shoot Date (or in the case of non-photographic Visual Content after 48 hours of acceptance of a proposal), or if any such cancellation is not communicated to Us at all, We shall, at Our option, be entitled to recover 100% of the Fees.
11.4 During the course of this Agreement and for a period of 12 months afterwards, You shall not solicit Our staff or any person employed or engaged by Us in relation to Our provision of the Photography and Video Production Services in the 6 months prior to expiry or termination of this Agreement, or entice them to transfer their employment or services.
12. GENERAL
12.1 Nothing in this Agreement shall be deemed to constitute a partnership or agency relationship between the Parties and neither of the Parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.
12.2 If at any time any part of this Agreement is or becomes unenforceable, such part will at Our option be construed as far as possible to reflect the parties’ intentions and the remainder of the provisions will remain in full force and effect.
12.3 No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of right operate as a waiver of any subsequent breach of this Agreement.
12.4 You shall not assign the benefit or burden of this Agreement without Our prior written consent.
12.5 No person who is not a party to this Agreement shall be entitled to enforce any of the terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
12.6 These Terms are made and shall be construed in accordance with the laws of England and the Parties submit to the exclusive jurisdiction of the English courts.
