1. The client wishes to engage Jarganic Limited (company number 10425462) whose registered office is at 1st Floor 2 Woodberry Grove, Finchley, London, England, N12 0DR
Jarganic has agreed to develop, produce and deliver to the client, a video(s), the aims, creative and editorial vision of which are set out in the Statement of Work provided.
1.1 The following definitions and rules of interpretation apply in this agreement.
Acceptance Date: the date on which the Client notifies Jarganic in accordance with the terms of this agreement that it has received and accepts as satisfactory and final the Video
Statement of Work: the services to be provided by Jarganic Statement of Work under this agreement.
Budget: the total cost of producing the Video, including allocation of costs for specific purposes, as set out in the Statement of Work.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Key Personnel: those persons listed in the Statement of Work who will provide the services for the production of the Video including presenters or actors appearing in or providing voice-over contributions to the Video, the director, individual producer, lead photographer or cameraman, and editor.
Payment Schedule: the schedule of payments set out in Schedule 1.
Production Fee: the sum payable to Jarganic as specified in the Budget as its fee for providing the Services and granting the rights set out in this agreement.
Production Schedule: the agreed dates, times and locations for the preparation, production and post-production of the Video during the Term, as set out in the Statement of Work.
Term: the period from the date of this agreement until the Acceptance Date or (if earlier) termination of this agreement.
Video: the video to be produced by Jarganic as provided for in the Statement of Work
1.2 The Statement of Work forms part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Statement of Work.
1.3 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.
2.1 In consideration of payment to Jarganic of the Production Fee the Client engages Jarganic, and Jarganic agrees, to produce the Video using the Key Personnel (to the extent Jarganic can reasonably make them available) and in accordance with the Statement of Work, the Budget and the Production Schedule and to provide such other services as are agreed between the parties from time to time in connection with the Video
3. CREATIVE CONTROL
3.1 The parties agree to meet from time to time as agreed between the parties to consult in good faith with each other over the editorial content and artistic direction of the Video provided that the Client shall, in its absolute discretion but with full discussion with Jarganic and giving good faith consideration to Jarganic’s views as a professional production company have final editorial and artistic control over the Video.
3.2 The Client shall appoint a representative (Client Representative) who shall have the right on behalf of the Client to accept as satisfactory the story outlines, scripts, voices, storyboards, design and music of the Video and the Client shall be responsible for the cost of any lengthening of the Production Schedule or Budget increase necessitated by the exercise of such right, other than the cost of changes arising from acts or omissions of Jarganic. The Client Representative will also be available to provide hands-on assistance during filming.
3.3 Jarganic will work to create the Video as per the signed statement of work and provide to the Client details of the scripts, voices, storyboards, design and music (as applicable) for the Video for review in line with Production Schedule. The Client shall confirm either its acceptance or non-acceptance with reasons in writing in line with the Production Schedule If Jarganic does not receive notice of such acceptance or non-acceptance within that period, the Client will be deemed to have accepted such details.
3.4 If the Client declines to accept any of proposed materials, Jarganic will work in line with the Production Schedule to make all necessary changes to them, in consultation with the Client, the Client having given written reasons for non-acceptance. Jarganic will then submit to the Client the revised materials or replaced materials and the provisions of clause 3.3 and this clause 3.4 will apply again save that any further request for amendment by the Client after the second review shall be subject to charge by Jarganic to cover reasonable costs necessarily incurred as a result of the second non-acceptance, such costs to be paid within 30 days of the Client’s receipt of a valid invoice for them.
3.5 The Client’s Representative shall have the opportunity to accept, or refuse to accept, the Video at rough-cut and final cut stage supplied on hard drive or uploaded onto a server for online review at Jarganic’s cost. Subject to dates being agreed in advance, the Client shall be entitled to request within the Production Schedule, reasonable amendments which shall be undertaken by Jarganic at its own cost. If the Client does not request amendments within 10 Business Days, acceptance shall be deemed to have occurred and the Video accepted.
4.1 The Jarganic agrees that it shall:
4.1.1 render the Services to the highest professional standards and in accordance with the Client’s reasonable instructions and requests;
4.1.2 perform the Services in willing co-operation with the Client via the Client Representative and where requested by the Client its other professional advisors and service providers such as the Client’s PR or advertising agency;
4.1.3 not without the Client’s written consent, order goods nor incur any liability on the Client’s behalf nor pledge its credit nor hold itself out as being entitled to do so other than as is contemplated in the Schedules attached to this agreement;
4.1.4 subject to clause 7.5 not without prior discussion with the Client make any commercial use of its role in, or association with, the Video;
4.1.5 be responsible for arranging and supervising the performance of and delivery of the Video;
4.1.6 maintain throughout the Term a policy of public liability and professional indemnity insurance providing not less than one million five hundred thousand pounds level of cover in respect of any act or omission of Jarganic; and
4.1.7 for the avoidance of doubt, be responsible for the payment of all wages, fees, costs and payments of any nature due to all personnel engaged or employed by Jarganic to render services in connection with the Video including all income tax, national insurance and any and all payment in lieu of holiday connected therewith and for the payment of all goods and services acquired by Jarganic to perform the Services, and the Client shall have no liability in respect of such costs.
4.2 The Client agrees that it shall:
4.2.1 provide Jarganic with reasonable access to its premises at no expense to Jarganic inclusive of the cost of space, heat, light, power providing that Jarganic shall, and shall procure that all its employees and contractors shall, enter into the Client’s standard conditions for such access if so required; and
4.2.2 inform all employees, agents and guests at its premises of the proposed filming and obtain relevant release forms duly signed by all such persons;
4.2.3 where necessary and agreed give Jarganic access to the Client’s personnel and instruct such personnel to assist and support Jarganic wherever possible, to comply with Jarganic’s reasonable requests in making the Video, and in particular to provide such information as Jarganic may request; and
4.2.4 provide access to digital information, company graphics and website for use in the Video.
4.2.5 not without good cause reject any of the materials delivered by Jarganic for approval
5. FEES AND PAYMENT
5.1 Subject to the provisions of this agreement and to the due performance by Jarganic of its material obligations under this agreement, the Client shall as inclusive remuneration and as full and complete consideration for the Services and all rights granted to the Client in this agreement, pay to Jarganic the Production Fee
5.2 Jarganic's fees are exclusive of VAT, which shall be paid to Jarganic, in addition, on submission by Jarganic of a valid VAT invoice.
5.3 Jarganic acknowledges upon payment by the Client to Jarganic of all sums due to Jarganic under this agreement such payment in full shall represent a buy-out of all rights granted to the Client under this agreement, including all so-called rental and lending rights, and that neither Jarganic nor any other person or corporate body employed or engaged by Jarganic in the production of the Video shall be entitled to any payments whether by way of profit share, use fees, residuals or any other type of payment in respect of the exploitation of any of the Products.
5.4 Jarganic will at the Client’s request give the Client details of its spending of the Budget up to the date of such request.
5.5 Unless otherwise agreed any overspend on the Budget shall be met by Jarganic, except to the extent that it arises from changes to the Services requested by the Client or as a result of acts or omissions of the Client that are inconsistent with its obligations under this agreement. For the avoidance of doubt, if the Production Fee is calculated as a percentage of the Budget, any part of the overspend that does not arise from such acts or omissions of the Client shall be disregarded for the purpose of calculating Production Fee.
Subject to Jarganic duly rendering the Services and not being in breach of any of its material obligations under this agreement, the Client authorises Jarganic to insert, or have the appropriate third party insert, credit as the producer of the Video on the end credits of the Video, with its name and web address printed on all hard copies of the Video and included alongside all online versions of the Video. [Provided that the Client has notified all third parties of its credit obligation to Jarganic under this agreement, no inadvertent failure by the Client or by any such third party to accord Jarganic such credit will constitute a breach of this agreement by the Client, provided further that it uses its reasonable efforts to remedy such failure where practicable.
Subject to payment in full of all monies payable to Jarganic by the Client, Jarganic will grant and assign to the Client absolutely:
7.1 the entire copyright throughout the world in all media whether now known or hereafter developed for the full period of copyright and all renewals, revivals, reversions and extensions thereof (and thereafter, in so far as it is able, in perpetuity) including so called rental and lending rights and, to the extent relevant, by way of present assignment of future copyright; and
7.2 all other rights whatsoever including all consents under Part II of the Copyright, Designs and Patents Act 1988 or any statutory modification or re-enactment thereof for the time being in force (CDPA) in the Products, and Jarganic hereby agrees to procure the giving of similar consents from all persons engaged or employed by Jarganic and whose performances or intellectual property rights are incorporated in the Products, to enable the Client to make the fullest use of the Products without restriction or payment of further fees.
7.3 Jarganic recognises that upon copyright being vested in the Client it will have the unlimited right to edit, copy, alter, add to, take from, adapt and translate all or any of the Products after delivery by Jarganic and hereby irrevocably and unconditionally waives the benefits of any provision of law relating to so-called “moral rights” (including without limitation any rights of Jarganic under section 77 to section 85 inclusive of the CDPA) and any similar laws of any jurisdiction in relation to the Products. Jarganic further agrees to procure the waiver of all such rights in favour of the Client and its successors in title by all persons engaged or employed by Jarganic and who contribute to the Video and to whom such rights may accrue.
7.4 Jarganic shall promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this agreement, and shall use all reasonable endeavours to procure that any third parties shall also do so as necessary. The Client shall reimburse Jarganic for the reasonable costs properly incurred by it in complying with its obligations under this clause.
7.5 The Client agrees that Jarganic may use the Client’s name and intellectual property rights solely to the extent necessary for the purpose of providing the Services, such as by including them on delivered materials, referring to them in paperwork and in discussions with third parties in order to indicate the nature of the Video, and including them in Jarganic’s own promotional materials. The Client warrants that no such use shall infringe the rights of any third party.
7.6 Jarganic shall have the non-exclusive right for a period of five years from the Delivery Date to use the video(s) or any part for its own promotional use in internal and client and prospective client presentations, show reels and on Jarganic’s website
7.7 For the purposes of the Data Protection Act 1998, as amended, Jarganic agrees and consents to the Client holding and processing personal data relating to Jarganic and individuals connected with Jarganic in any form, whether electronically or otherwise, provided that Jarganic complies at all times with data protection law and best practices.
8.1 The Jarganic hereby warrants, represents and undertakes to the Client that:
8.1.1. Jarganic is fully entitled to enter into and to perform this agreement;
8.1.2 the Video (save to the extent that it incorporates material made available to Jarganic by the Client) will be wholly original to Jarganic and will not infringe the copyright or any other rights of any third party, including rights to privacy;
8.1.3 the Video will not (including by way of inflection or gesture or otherwise) contain any defamatory matter or breach any contract or duty of confidence nor bring the Client into disrepute or subject it to criminal or civil proceedings, and does not incorporate any matter which constitutes contempt of court or breach any provision of law unless such material has been provided to Jarganic by the Client and agreed in advance by the parties;
8.1.4 Jarganic is and will remain throughout the term a registered data holder and controller for the purposes of the Data Protection Act 1998 and shall hold all and any data relating to this agreement strictly in accordance with such legislation at all times;
8.1.5 Jarganic shall not make any commercial exploitation of any of the Products except as permitted under this agreement; and
8.1.6 Jarganic shall indemnify the Client and keep the Client fully and effectively indemnified against all actions, costs, demands, losses, claims and expenses of whatsoever kind or nature arising from any actual or threatened breach or non-performance of any of the warranties, representations, undertakings or obligations on Jarganic’s part contained in this agreement.
8.1.7 In order to receive the indemnification under paragraph 3.1.6 the Client shall promptly notify Jarganic of a claim and shall grant Jarganic the sole right to defend, control and settle such claim, and Jarganic shall have the right at its own cost to have its own legal counsel present at all meetings and hearings relating to the claim. The Client shall not compromise, settle or otherwise resolve a claim without Jarganic’s prior written consent, not to be unreasonably withheld or delayed.
8.2 The Client hereby warrants, represents and undertakes to Jarganic that:
8.2.1 It is fully entitled to enter into and perform this agreement;
8.2.2 It shall either own, or have obtained and paid for licences to use, all materials provided to Jarganic by the Client in connection with the production of the Video; and
8.2.3 the Client shall indemnify Jarganic and keep Jarganic fully and effectively indemnified against all actions, costs, demands, losses, claims and expenses of whatsoever kind or nature arising from any actual or threatened breach or non-performance of any of the warranties, representations, undertakings or obligations on the Client’s part contained in this agreement.
8.2.4 In order to receive the indemnification under paragraph 3.2.3 Jarganic shall promptly notify the Client of any claim and shall grant the Client the sole right to defend, control or settle such claim and Jarganic shall have the right to have their own counsel present at Jarganic’s sole cost and expense.
8.3 Neither party shall be liable to the other party for incidental, consequential, special or punitive damages or loss of profits that the other party may suffer arising out of any breach of this agreement.
9.1 Subject as otherwise provided for in this Agreement Jarganic shall not, without the prior consent of the Client, make to any third party any statement or supply any information or photograph or trailer relating to the Video or to the Services or to the business or legal affairs of the other, other than to state that it is producing the Video (but this shall not prevent proper disclosures of information to the parties’ professional advisers or as required by law).
9.2 Notwithstanding clause 7.1, Jarganic acknowledges that the Client is subject to the Freedom of Information Act 2000 and may be required to release information pursuant to that Act.]
10. PUBLICITY AND PROMOTION
10.1 The parties agree in good faith to consult throughout the Term on publicity, awards and promotional plans for the Client that involve use of the Video. All public relations, promotional and press activities undertaken shall be subject to the Client’s prior written approval (such approval not to be unreasonably withheld or delayed).
11.1 The Client shall not be liable for:
11.1.1 any claim for loss of publicity or opportunity to enhance the reputation of Jarganic even if it delays or abandons production or exploitation of the Video or the use of the Services; or
11.1.2 any loss or damage to the property of the Client, nor for any personal injury, illness or death caused or suffered in connection with its engagement under this agreement unless caused by the negligence of the Client and recoverable on that ground following the judgment of a competent court.
12.1 The Client may terminate this agreement on 4 weeks written notice.
12.2 On termination under paragraph 7.1 Jarganic shall be entitled to receive payment:
12.2.1 of all sums that Jarganic is, up to the date of termination, contractually obligated to pay third parties; and
12.2.2 on a pro rata basis of the for Services rendered up to the date of termination and any sums to which Jarganic is, up to the date of termination, contractually obligated to pay third parties. The pro rata amount shall be calculated according to the work done as a proportion of the whole works that would have been required:
12.3 The Client may terminate this agreement with immediate effect by giving written notice to Jarganic if:
12.3.1 Jarganic commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 4 Business Days after being notified in writing to do so; or
12.3.2 Jarganic repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or
12.3.3 Jarganic is incapacitated from rendering the Services for more than either 5 consecutive Business Days or 14 Business Days in the aggregate.
12.4 On termination of this agreement for any reason:
12.4.1 neither party shall have any further obligation to the other under this agreement except as stated in this agreement;
12.4.2 the rights, remedies or obligations of the parties that have accrued or become due before termination shall remain unaffected; and
12.4.3 the Client shall remain entitled to all rights granted or assigned to it under this agreement – provided that it has first paid all sums due to Jarganic under this agreement.
13. ASSIGNMENT AND OTHER DEALINGS
13.1 Jarganic shall not, without the prior written consent of the Client, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
13.2 The Client shall be entitled to assign the benefit of this agreement; the Products and the Services to any third party and Jarganic shall render the Services to such assignee. The Client shall remain primarily liable to Jarganic for all its obligations under this agreement notwithstanding any such assignment.
14. THIRD-PARTY RIGHTS
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
15. NO PARTNERSHIP OR AGENCY
15.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party.
15.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
16.1 No failure or delay by a party to exercise any right or remedy provided under this agreement 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. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
18.1.1 delivered by hand or by prepaid 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); or
18.1.2 sent by e-mail to its main e-mail address.
18.2 Any notice or communication shall be deemed to have been received:
18.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
18.2.2 if sent by prepaid first-class post or other next working day delivery service, at 11.00 am on the second Business Day after posting; or
18.2.3 if sent by e-mail at 9.00am on the next Business Day after transmission.
18.3 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.
18.4 The provisions of this clause 18 shall not apply to the service of any proceedings or other documents in any legal action.
19. ENTIRE AGREEMENT
19.1 This agreement 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.
19.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
20.1 Jarganic acknowledges that in the event of any breach of any of the terms of this agreement by the Client, Jarganic’s sole remedy shall be an action at law for damages and in no event shall it be entitled to rescind this agreement or receive any injunctive or other equitable relief which may affect the Client’s ability to exploit the Video.
20.2 No failure or delay by either party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
21. THIRD-PARTY RIGHTS
A person who is not a party to this agreement shall not have any rights under or in connection with it.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
23. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.