Create Productions Ltd Terms & Conditions

1. Definitions

“Client”

means the person, firm or company identified as such under the Agreement (including its successors in title and assigns).

“Agency”

means a person, firm or company carrying on business involving the selection and purchasing of content or services.

“Agreement”

means an agreement (written or oral) between the Client and Create for the execution of work by Create on behalf of the client (including, without limitation, a completed “Client Order form” or other record of such booking) and shall include these Conditions which shall be deemed incorporated therein.

“Authority”

means competent regulatory body.

“Create”

means Create Productions Ltd. (company number 07653677) whose registered office 4th Floor, 21 Denmark Street, London, WC2H 8NA.

“Conditions”

means these terms and conditions for the time being in force (including any amendment under Condition 12.6).

“Costs”

means the costs specified in the Agreement (which are supplemental to the Fee) and other such costs and disbursements agreed by Create and the Client such as for commercial production and/or creative services in connection with a Promotion or the creation of Content

“Content”

refers to material supplied or required by Create to include but not exclusively audio, video, images – photographic or assets , online assets and text.

“Fee”

means the fee for the Content and or Promotion as specified in the Agreement.

“Prizes”

means the prizes to be supplied by the Client (if any) in accordance with the Agreement.

“Promotion”

means any work undertaken by Create on behalf of the client relating to a promotion which is detailed in the Agreement.

“Production”

refers to the process of producing content.

“Podcast”

means an audio or video file created for download via internet portals such as iTunes and other sites.

“Vodcast” or “Video Cast”

means a video file created for streaming or download via internet portals such as iTunes and other sites.

2. Agencies and Commissions

2.1 A Client who is an Agency shall contract as principal and will be responsible for the payment of all amounts under the Agreement and will be deemed to have full authority in all matters connected with the booking of Content or Promotion or the amendment or approval of Content or Promotion.

2.2 Agency commission of 15% might in some cases be payable (or such other amount determined by Create) of the Fee (excluding VAT) is payable by way of deduction to a bona fide credit worthy Agency recognised by Create (in its sole discretion). No agency commission is payable whilst sums remain due from the Client after the due date for payment and no such commission shall be paid to or shared with any third party.

3. Acceptance of Terms and Conditions

3.1 The booking of the production of Content or instruction or activity, will be deemed an unqualified acceptance of these Conditions by the Client (whether or not the Agreement is confirmed in writing, it will be deemed accepted by performance). These Conditions shall govern and be incorporated into the Agreement and shall prevail over any other terms and conditions contained or referred to elsewhere (whether before or after receipt of these Conditions) or implied by trade custom, practice, course of dealing or law.

3.2 The Client acknowledges that where Create buys advertising and services on behalf of the Client, Create acts only as agent for the Client. The Client’s contract, rights and remedies will be with the third party (and not Create) accordingly. For the purposes of this provision “third party” means any company that is not a Create group company.

4. The Client

4.1 Content (audio, video, text, online and/or design) which is being produced by Create shall be sent to the Client for its approval before the scheduled start of the Campaign or as otherwise agreed by the parties. The Client shall approve such Content (approval not to be unreasonably withheld or delayed) or the Content shall be otherwise agreed no later than 1 clear working days before the scheduled deadline. Failure to do so may result in a delay or cancellation of the production (in Create’s sole discretion) but shall not affect the Client’s obligation to pay the Fee (and Costs). The amendments process shall be outlined in the production timeline. The Client is entitled to one set of amendments free of charge featuring no more than one days work (at Create’s discretion). Further alterations will be charged at a daily rate of £1000 per day for video and design and £500 for audio.

4.2 Content which is not being produced by Create must be received by Create not less than 5 clear working days before the scheduled start of the production unless Create agrees otherwise in writing. Receipt of such content shall not be deemed to have been made until Create’s technical requirements and other procedures have been complied with (including, if so required by Create, evidence that the content has been approved by the its owner). If content is not received within the specified time (or is deemed not to have been received), the acceptance of Content will be in the absolute discretion of Create and the client shall remain liable to pay the Fee (and Costs) for the entirety of the production whether or not the production is completed.

4.3 (Has bean purposely removed).

4.4 The extent and editorial process for the Production of Content shall be within Create’s discretion (Create to retain full editorial control), subject to the general substance of the same having been agreed with the Client prior to production (such agreement not to be unreasonably withheld or delayed).

4.5 The script for Content shall be approved by the Client (such approval not to be unreasonably withheld or delayed) in good time before the scheduled start of the production period. Failure to do so may result in a delay or cancellation of the Production (in Create’s discretion) but shall not affect the Client’s obligation to pay the Fee (and Costs).

4.6 Create shall only begin production if:- (i) the Client has obtained all necessary licences and consents for the placement of any material protected by any intellectual property or other rights contained in the Content; and (ii) the Content is not defamatory or slanderous of any third party or inaccurate or misleading or in contravention of any relevant legal or regulatory requirement or code of practice (whether voluntary or obligatory) relating thereto and does not infringe any rights of a third party.

4.7 The Content supplied by the Client must comply with such technical requirements and other procedures as Create may require in respect of the same. In particular (without limitation) any product claims contained in the Content must be capable of verification and, if requested by Create, the Client shall provide evidence of the same. For the avoidance of doubt, Create shall have no liability or responsibility for verifying any such product claims or ensuring that the Content complies with this Condition 4.7.

4.8 Create may (without incurring any liability whatsoever) amend or decline to produce the Content if, in Create’s opinion, the Content does not comply with Condition 4.6 or 4.7 or is otherwise unsuitable or inappropriate for publication (in Create’s absolute discretion) or Authority requires it to do so.

4.9 If Create exercises its discretion pursuant to Condition 4.8, it will notify the Client as soon as practicable who shall consult with Create with respect to supplying alternative contact if appropriate. Should alternative assets not be appropriate or not accepted by Create (or not be provided), the Client shall remain liable to pay the Fee (and Costs) for the entirety of the production whether or not the production has started and the Client shall have no claim against Create for any expense or damage whatsoever incurred as a result thereof.

4.10 Acceptance of the Agreement by Create does not confer any right for the Client to have a repeat order accepted on similar terms. 5. The Production

5.1 Create reserves the right to modify the scheduled times and dates of the Production. If for any reason (other than by reason of the Client’s default or the exercise of Create’s discretion pursuant to Condition 4.8 above) Content is not produced as scheduled or is produced containing a material error, Create will use all reasonable endeavours to offer alternatives for the production at some other time/or some other date(s) which may be accepted instead by the Client at no additional cost (but without prejudice to the Client’s obligation to pay the Fee). Save for such offer (whether or not the Client accepts the same), the Client shall have no claim against Create in respect of failure or delay or partial production of the Content or for any expense or damage whatsoever incurred as a result thereof (and this shall not affect the Client’s obligation to pay the Fee).

5.2 Create accepts no liability for any loss of profit, business, contracts, revenues or anticipated savings or for special, direct, indirect or consequential loss of any nature howsoever arising even if such damages are foreseeable and whether or not Create has been advised of the possibility thereof. The maximum liability of Create to the Client for any and all breaches of the Agreement or any other liability arising under the Agreement (or tort including negligence or breach of statutory duty save in cases of death or personal injury) shall be the amount of the Fee and Costs under the Agreement.

5.3 The Client acknowledges that the Production is subject to Create’s editorial approval and that all editorial decisions concerning the production shall be at the sole discretion of Create. Create reserves the right (without incurring any liability whatsoever to the Client) to make such changes or deletions to the production as may be required by Authority or other competent regulatory authority. Create shall keep the Client informed of any significant changes.

5.4 The Client acknowledges that the Production is based on the original brief as outlined by the client/or agency, verbally and/or in writing. If the production brief changes further work will be charged at a daily editing rate of £1000 for video and £500 for audio. Additional shooting will be priced at a comparable rate.

5.5 If the designated presenter/and or cast for the production is unable or unwilling to present/take part in the Production, Create reserves the right to substitute the designated presenter/and or cast with another presenter/and or cast (in Create’s discretion).

5.6 If the designated location for the production is unavailable or unsuitable for the Production, Create reserves the right to substitute the designated location with another location (in Create’s discretion).

5.7 The Client acknowledges that all copyright and other rights in the Production (unless agreed in wriiting) shall remain the sole property of Create and that the Client shall not acquire any rights in the Content in particular (without limitation) Create shall be entitled to retain all sums received from Production of the Content.

5.8 The Client will provide Create with the Prizes (if any) no later than 28 days from the date the Prize is won or upon Create’s request whichever is earlier. The Client acknowledges that the Prizes, where appropriate, are an integral part of the Agreement. If Create does not receive the Prizes within the specified time, Create is entitled to invoice the Client for the total amount of such Prizes at face value (as assessed by Create), to be paid by the Client no later than 7 days following the date of invoice. The Client acknowledges that Create will have no liability whatsoever in respect of any Prizes to be given away as part of the Promotion and shall indemnify Create in respect of any claims, actions, loss and damages arising in from or in connection with the same (including loss of Create’s reputation and goodwill).

5.9 The Client may request Create to provide less than the agreed amount of Content upon giving Create not less than 7 clear day’s prior notice in writing but this shall not affect or otherwise discharge the Client’s obligation to the pay the entirety of the Fee for the Promotion.

5.10 Subject to the rights granted to the Client by Create in writing under this Agreement, Create shall retain the copyright and all other rights in such material absolutely.

5.11 Should the client change the date of the Production less than 24 hours prior to the commencement of the Production, the Client will be liable to pay 75% of the Production costs in addition to the original Production costs under this Agreement being charged for re-scheduling of another Production date.

6. Termination and Cancellation

6.1 Either party may terminate this Agreement by giving to the other notice in writing no later than 28 days before the scheduled start date of the production or the scheduled start of the Pre-Production Period. Termination by the Client will result in a cancellation charge of 25% of the Fee plus a reimbursement to Create of all costs incurred to the date of termination in respect of the Production, payable in full by the Client on the date of termination. For the avoidance of doubt, a termination notice received by Create later than 28 days before the scheduled start of the Production or Pre-Production Period will result in the entirety of the Fee becoming due and immediately payable.

6.2 Create may terminate the Agreement by giving notice in writing to the Client no later than 3 clear days following acceptance of the booking under the Agreement.

6.3 Create may terminate the Agreement immediately by notice in writing if the Client:(i) commits a material breach of its obligations under the Agreement which, if capable of remedy, is not remedied within 7 days after receipt of written notice requesting the same; or (ii) goes into liquidation either voluntary or compulsory (except as part of a bona fide scheme of reconstruction or amalgamation), is dissolved, compounds with its creditors or has a receiver or administrative receiver appointed over the whole or part of its assets.

6.4 Termination does not affect a party’s accrued rights and obligations as at the date of termination.

7. Material and Property Liability

7.1 Create will endeavour to use reasonable care in respect of any content, equipment or material under the Agreement but shall have no liability whatsoever for the loss, damage or unauthorised use of the same (whether or not such material is provided by Create). Production material may be destroyed by Create after a period of three months following delivery end of the Content or Promotion without further reference to the Client.

8. Fees, Costs and Payment

8.1 If the Client is an approved credit customer of Create, the Fee and Costs will be invoiced periodically as specified by Create or, if no period is specified by Create, the Fee will be invoiced monthly in arrears at the end of each calendar month for the duration of the Agreement. If the Client is not an approved credit customer of Create (or loses its approved credit rating during the term of the Agreement) the Fee for the entirety of the Agreement will be invoiced on the date of the Agreement (or upon losing its credit rating) or as otherwise agreed in writing by Create.

8.2 Payment of invoices will be made in full within 30 days of the date of the invoice unless otherwise specified on the invoice by Create. Payment is to be made in cleared funds in the same currency as the invoice and without any withholding, deduction, set-off or counterclaim whatsoever. In default of such payment, Create is entitled (without prejudice to its other remedies) to immediately cease production without any obligation to the Client or claim against Create. Time of payment is of the essence.

8.3 If any amount is not paid in full by the due date for payment, interest is payable on the outstanding amount at a rate of 5% per annum above the base lending rate from time to time of Coutts Bank. Interest is calculated on a daily basis and accrues from the due date for payment until receipt by Create of the full amount (including any accrued interest) whether before or after judgment.

8.4 The existence of a query on any item in an invoice shall not affect the due date of payment of the balance of the invoice. The Client must notify Create of any query within 3 working days of the date of invoice. Invoices may not be queried after this time. Any amount queried and withheld by the Client will be subject to the full rate of surcharge in Condition 8.3 above and will be payable as part of the settlement of the following invoice, unless resolved in favour of the Client.

8.5 Any extension of credit allowed to the Client may be changed or withdrawn at any time. For the avoidance of doubt, if the Client ceases to be an approved credit customer of Create, Create reserves the right by notice in writing to invoice the Client immediately for the outstanding amount of the Fee for the entirety of the Agreement.

8.6 Create is entitled to set-off monies held by it for the Client against any monies due by it to the Client (and any Client’s group company) and is entitled to apply any monies held by it on behalf of the Client in settlement of any monies due to it by the Client.

8.7 If any amount is not paid in full by the due date for payment, Create may (in its absolute discretion) elect not to accept any new requests for Content or Promotion from the Client (whether for the same client or in respect of other clients).

9. Warranties and Indemnities

9.1 The Client warrants and undertakes to Create that:-(i) it is responsible for obtaining, maintaining and paying for all necessary licences and consents for the transmission of any material protected by any intellectual property or other rights contained in the Content or the Promotion; and (ii) the Content or the Promotion will not infringe the copyright or other rights of or be defamatory, libellous or slanderous of any third party or be inaccurate, misleading, obscene or offensive or in any way contravene any relevant legal or regulatory requirement or code of practice (whether voluntary or obligatory) from time to time governing or relating to the Content or its publication and will not infringe any rights of a third party.

9.2 The Client undertakes to Create that the products or services which are the subject of the Promotion and/or which are reasonably associated with the Promotion are safe and fit for their intended purpose and comply with all legal and regulatory requirements or codes of practice (whether voluntary or obligatory) in respect of the same.

9.3 The Client will indemnify and keep Create indemnified against all actions, proceedings, costs, damages, expenses, penalties, claims, demands and liabilities (including legal and other professional fees and damages for loss of reputation and goodwill) arising from any breach of the above warranties or in any manner whatsoever resulting from the use or broadcast of the Content or the Promotion.

9.4 The Client shall notify Create forthwith on it becoming aware of any fact or circumstance which would constitute a breach of Conditions 9.1 or 9.2.

10. Force Majeure

10.1 Create shall have no liability to the Client if it is prevented, hindered or delayed in carrying out any of its obligations under the Agreement by any law or regulatory order, rule or regulation or by any other act or thing beyond Create’s control (including but not limited to strike, lock-out, malicious damage, breakdown of plant, software or machinery, accident, fire or flood or death of royalty).

10.2 Create may (without any right of the Client to bring a claim against Create) extend the time period for performance of the Agreement to take account of such force majeure or terminate the Agreement with immediate effect by written notice. If the force majeure continues for more than one month, Create may terminate the Agreement with immediate effect by written notice. For the avoidance of doubt, any such termination shall be without prejudice to Create’s right to be paid any accrued amounts as at the date of termination.

11. General

11.1 Any notice under the Agreement shall be in writing and sent by recorded delivery post, by-hand delivery, first-class post or by fax at the last known address or fax number from which one party has communicated with the other in connection with the Agreement and, if sent by first class post, shall be deemed to have been received 36 hours after posting. In the case of the service of a notice by Client upon Create, any such notice shall be addressed for the urgent attention of the Company Secretary.

11.2 The Client may not assign or transfer any of its rights or obligations hereunder without having obtained Create’s prior written consent.

11.3 The Client shall not without the prior written consent of Create publish any information in connection with any content which has been created.

11.4 The invalidity, illegality, or unenforceability of the whole or part of a Condition does not affect or impair the continuation in force of the remainder of these Conditions.

11.5 Create shall be entitled to refer to the Client’s association with Create and the projects placed hereunder to promote Create and its production business generally.

11.6 No variation of the terms of the Agreement is effective unless specifically approved in writing by the Client and a duly authorised representative of Create. This is without prejudice to Create’s right to amend or modify these Conditions from time to time.

11.7 The Agreement represents the entire agreement between the parties relating to the subject matter of the Agreement and supersedes all prior representations, agreements, negotiations or understandings (whether oral or in writing). Except as set out in these Conditions, all conditions, warranties and representations expressed or implied by law are excluded.

11.8 The failure to exercise or delay in exercising a right or remedy provided by these Conditions or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies.

11.9 This Agreement does not create any right or benefit enforceable by any person not a party to it (within the meaning of the Contracts (Rights of Third Parties) Act 1999).

11.10 The Agreement shall be governed by and interpreted in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts.

October 2011

Create Productions Limited

Registered number: 07653677

Registered office: 4th Floor, 21 Denmark Street, London. WC2H 8NA