Business Day - any day which is not a Saturday, a Sunday or a bank or public holiday in the country of incorporation of UMECast Ltd.;
Charges - the Charges set out in the Contract, as varied in accordance with the Contract;
Conditions - these terms and conditions;
Confidential Information - the provisions of the Contract and all information which is secret or otherwise not publicly available (in both cases either in its entirety or in part) including commercial, financial, pricing, marketing or technical information, know-how, trade secrets or business methods, in all cases whether disclosed orally or in writing before or after the date of the Contract;
Contract - any contract formed between UMECast Ltd. and the Client for the provision of Services incorporating these Conditions;
Control - that a person possesses, directly or indirectly, the power to direct or cause the direction of the affairs and policies of the other person (whether through ownership of share capital, possession of voting power, ability to appoint directors, contract or otherwise);
Controller - as defined in GDPR;
Client - the person(s), firm or company who purchases the Services from UMECast Ltd.;
Data - the personal data (as defined in GDPR) and special personal data (as set out in Article 9(1) of the GDPR) provided by the Client to UMECast Ltd. pursuant to this Contract or which is otherwise Processed by UMECast Ltd. on behalf of the Client pursuant to the Contract;
Data Subject - as defined in the GDPR;
Deliverables - the output of the Services provided to the Client which has been developed by UMECast Ltd. or its agents, subcontractors, consultants and employees pursuant to the Contract , whether a document, a film or video, computer program, or data;
Force Majeure - any event outside the reasonable control of either party affecting its ability to perform any of its obligations (other than payment) under this Contract including act of God, fire, flood, lightning, compliance with any law or governmental order, rule, regulation or direction, war, revolution, act of terrorism, riot or civil commotion strikes, locks outs and industrial action, failure of supplies of power, fuel, transport, equipment, raw material or other goods or services;
GDPR - the regulations on the protection of natural persons with regard to the processing of personal data and on the free movement of such data known as the General Data Protection Regulation ((EU) 2016/679);
Input Material - all documents, information and material provided by the Client relating to the Services, including computer programs, data, reports, specifications and such other in-put material as are specified in the Specification or requested by UMECast Ltd.;
Intellectual Property Rights - any patent, copyright, trade mark, service mark or trade name, utility model, right in software, right in design, right in databases, image right, moral right, right in an invention, right relating to passing off, domain name, right in confidential information (including trade secrets) or right of privacy, and all similar or equivalent rights in each case whether registered or not and including all applications (or rights to apply) for, or renewal or extension of, such rights which exist now or which shall exist in the future in the United Kingdom and all other countries in the world in each case whether registered or not and including any application for registration of the foregoing;
Order - any order from the Client to UMECast Ltd. for the supply of Services in such form as UMECast Ltd. may determine from time to time;
Pre-existing Material - all documents, information and material (including computer programs, data, reports and specifications) owned by UMECast Ltd. which existed prior to the date of the Order or which has not been developed or created exclusively for the Client;
Processing - as defined in the GDPR;
Processor - as defined in the GDPR;
Proposal - any offer from UMECast Ltd. to the Client for the supply of Services in such form as UMECast Ltd. may determine from time to time;
Services - as set out in the Order and/or Proposal;
Specification - the specifications or stipulations for the Services set out in the Order and/or Proposal or otherwise incorporated in the Contract;
Third Party Material - all documents, information and material (including computer programs, data, reports and specifications) owned or controlled by a person who is not part of UMECast Ltd. and is not the Client;
UMECast Ltd. Material - the Pre-existing Material, Third Party Material and all other documents, equipment and other property of UMECast Ltd.
(b) Words expressed in the singular shall include the plural and vice versa. Words referring to a particular gender include every gender. References to a person include an individual, company, body corporate, corporation, unincorporated association, firm, partnership or other legal entity.
(c) The words "other", "including" and "in particular" shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.
(d) References to any statute or statutory provision shall include (i) any subordinate legislation made under it, (ii) any provision which it has modified or re-enacted (whether with or without modification), and (iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification) whether made before or after the date of the Contract.
2.2 No Order placed by the Client shall be deemed to be accepted by UMECast Ltd. until a written acknowledgement of order is issued by UMECast Ltd. or (if earlier) UMECast Ltd. commences the provision of the Services. Any Order shall be accepted entirely at the discretion of UMECast Ltd., at which point and on which date the Contract shall come into existence.
2.3 The Contract shall be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever).
2.4 It is the Client's obligation to ensure that the terms of its Order and any applicable Specification are complete and accurate.
2.5 Any quotation or estimate made by UMECast Ltd. is given subject to these Conditions. Without prejudice to UMECast Ltd. right not to accept an Order, quotations will be valid for 14 days from date of issue.
2.6 UMECast Ltd. shall use reasonable endeavours to provide the Services and deliver the Deliverables to the Client in accordance with the Specification in all material respects.
2.7 UMECast Ltd. shall use reasonable endeavours to provide the Services including the Deliverables and to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time for performance by UMECast Ltd. shall not be of the essence.
2.8 UMECast Ltd. warrants to the Client that the Services shall be provided and the Deliverables compiled using reasonable care and skill. However UMECast Ltd. is not responsible for ensuring that the Deliverables comply with all applicable laws and regulations in any country in which the Deliverable is used and does not infringe the Intellectual Property Rights of any person in any territory.
(b) provide, for UMECast Ltd., its agents, subcontractors, consultants and employees, in a timely manner and at no charge such Input Material (and ensure that it is accurate in all material respects) as are reasonably required by UMECast Ltd. to undertake the Services and/or provide the Deliverables.
(c) where identified in the Contract or otherwise reasonably required by UMECast Ltd. to undertake the Services and to provide the Deliverables, provide to UMECast Ltd., its agents, subcontractors, consultants and employees in a timely manner and at no charge, access to the Client's premises or accommodation and shall:
(i) inform UMECast Ltd. of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client's premises;
(ii) keep and maintain the UMECast Ltd. Material at the Client's premises in safe custody at its own risk, maintain the UMECast Ltd. Material in good condition until returned to UMECast Ltd., and not dispose of or use the UMECast Ltd. Material other than in accordance with UMECast Ltd. written instructions or authorisation.
(d) ensure that the Input Material comply with all applicable laws and are not defamatory, and shall ensure that the use of the Input Material by UMECast Ltd. (and its agents, subcontractors, consultants and employees) for the purpose of the Services and the Deliverables shall not be in breach of any applicable law or otherwise create any liability to any third parties;
3.2 If UMECast Ltd. performance of its obligations under this Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, UMECast Ltd. shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
3.3 The Client shall be liable to pay to UMECast Ltd., on demand, all reasonable costs, charges or losses sustained or incurred by UMECast Ltd. (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to UMECast Ltd. confirming such costs, charges and losses to the Client in writing.
4.2 Where the nature of the Services is such that approvals are required from the Client on-the-spot (e.g. in the event of a live action recording session) then the Client shall procure the attendance of a Client representative authorised to give such approvals. Where the Client has failed to provide such a representative, UMECast Ltd., acting reasonably, shall have final discretion with regard to the relevant approvals.
5.2 If the Client wishes to change the scope of the Services, it shall submit details of the requested change to UMECast Ltd. in writing.
5.3 Upon receipt of such written request, UMECast Ltd. shall, within a reasonable time, provide a written estimate to the Client of:
(a) the likely time required to implement the change;
(b) any variations to UMECast Ltd. charges arising from the change;
(c) any other impact of the change on the terms of the Contract.
5.4 If the Client wishes UMECast Ltd. to proceed with the change, UMECast Ltd. has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges and any other relevant terms of the Contract to take account of the change.
5.5 UMECast Ltd. reserves the right to substitute personnel, equipment, locations or other aspects of the Services as it considers desirable, provided that such substitutions do not materially affect the cost or the quality of the Services.
6.2 UMECast Ltd. reserves the right to increase the Charges by giving written notice to the Client:
(a) at any time prior to commencement of the Services, where there is any change in the cost of providing the Services which has arisen as a result of any factor outside of UMECast Ltd. control;
(b) at any time if the performance of the Services falls behind schedule as a result of any act or omission of the Client or a change in the Client's requirements.
6.3 Where the Charges do not include costs and expenses in connection with travel and accommodation, UMECast Ltd. shall be entitled to charge the Client additional fees in respect of such reasonable costs incurred plus an administration fee of five per cent (5%). Extra Charges shall wherever possible be agreed with the Client or its representative in advance, but in the event of failure to agree such changes for reasons of time or otherwise the Client agrees to pay such additional charges as are reasonable.
6.4 Unless set out elsewhere in this Contract, fifty percent (50%) of the Charges shall be payable by the Client within seven (7) days of the date of UMECast LTd. initial invoice. The balance of Charges (and any additional charges) shall be payable by the Client within thirty (30) days of the date of receipt of the relevant invoice.
6.5 UMECast Ltd. may at any time at its sole discretion require payment in advance in respect of such of the Services and in such amount as UMECast Ltd. shall deem necessary. Where UMECast Ltd. does request payment of the Charges (including expenses) then such payment must be made in advance of delivery of the relevant Services to the bank account nominated in writing by UMECast Ltd..
6.6 All sums payable under this Contract are exclusive of VAT and any applicable tax or duty which shall be payable to UMECast Ltd. at the rate from time to time prevailing.
6.7 The Client shall make all payments due under the Contract without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
6.8 If any sum due from the Client to UMECast Ltd. under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Client to UMECast Ltd. shall become due and payable immediately and, without prejudice to any other right or remedy available to UMECast Ltd., UMECast Ltd. shall be entitled to:
(a) cancel or suspend its performance of the Services or other services until arrangements as to payment or credit have been established which are satisfactory to UMECast Ltd.;
(b) appropriate any payment made by the Client to such of the Services (or any services supplied under any other contract between UMECast Ltd. and the Client) or as UMECast Ltd. may think fit; and (c) charge the Client:
(ii) the cost of obtaining judgment or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
7.2 The Client acknowledges that UMECast Ltd. may own or hold a licence to use and/or sub-license various pre-existing Intellectual Property Rights necessary to the development of the Services (“BackgroundIPRs”).
7.3 UMECast Ltd. retains all right, title and interest in the Background IPRs and warrants that the Background IPRs and the Intellectual Property Rights assigned and/or licensed to the Client will not infringe the Intellectual Property Rights or otherwise be in breach of the rights of any other person and/or organisation.
7.4 On payment by the Client of all sums due to UMECast Ltd. hereunder UMECast Ltd. hereby assigns to the Client all rights, title and interest in any Intellectual Property Rights in the Services and in any Intellectual Property Rights created or developed by UMECast Ltd. for the Client pursuant to this Contract (“Foreground IPRs”) provided that UMECast Ltd. shall retain a non-exclusive, world-wide licence of the Foreground IPRs to make and to distribute copies of the Services or parts thereof for the purpose only of promoting and demonstrating the services and skills of UMECast Ltd. (which, for the avoidance of doubt, shall include the right to reproduce the Services on UMECast Ltd.’s web sites). UMECast Ltd. shall retain all rights, title and interest in any Intellectual Property Rights in any improvement in or development of the Background IPRs (and shall not be required to assign such rights to the Client).
7.5 Nothing in this Contract shall be construed as assigning or licensing or purporting to assign or license to the Client any intellectual property rights of any third party unless such third party has expressly consented to such in Writing.
8.2 The Client also agrees to indemnify UMECast Ltd. against the total loss sustained due to the interruption, postponement, cancellation or abandonment of the Services which arises out of any matter for which the Client is responsible as defined above including UMECast Ltd. costs, Directors and Producers fees and Company’s mark-up.
9.2 The Client agrees that materials belonging to third parties (“Third Party Materials”) may form part of the Services and acknowledges that such Third-Party Materials may have limited use and exploitation rights.
9.3 The Permitted Use of the Services shall not include the public performance rights, which rights shall if required be obtained by the Client from the Performing Rights Society. Permitted Use shall not include the ability of persons, companies or organisations other than the Client to otherwise exploit the Services without the written permission of UMECast Ltd., such permission not to be unreasonably withheld or delayed.
10.2 The Client warrants and undertakes that it shall indemnify and hold UMECast Ltd. harmless from any damages, losses and costs, including the cost of any settlement that may be awarded or agreed, that may be paid to any party who claim that the Services are considered defamatory, obscene, libellous, menacing, pornographic and/or illegal. UMECast Ltd. reserves the right to refuse to carry out the Services if it has reasonable grounds for belief that the Services are defamatory, obscene, libellous, menacing pornographic and/or illegal.
12.2 Each party will indemnify and hold harmless the other against any damages, losses and costs (including the costs of any settlement), compensation or expenses that may be awarded or agreed to be paid to any third party in respect of any claim or action that use of goods, services and documents supplied to the other (“the User”), or to which the User is permitted access under the Contract infringes the Intellectual Property of said third party (an “Intellectual Property Infringement”) provided that the User gives prompt notice to the other party of any Intellectual Property Infringement upon becoming aware of the same. Each Party gives the other the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the other; and acts in accordance with the reasonable instructions of the other and gives to the other such assistance as it shall reasonably require in respect of the conduct of the said defence including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and the provision of all relevant witnesses and documents.
12.3 The other party shall reimburse the User its reasonable costs incurred in complying with the provisions of this indemnity.
12.4 Neither party shall have any liability to the other in respect of an Intellectual Property Infringement if the same results from any breach of the other’s obligations under this Contract.
14.2 In the event that either party is in breach of clause 13.1 above then the party in breach shall pay to the other by way of liquidated damages an amount equal to fifty per cent (50%) of the gross annual salary (as at the time of the breach) of the person so employed or engaged. This provision shall be without prejudice to either party’s ability to seek injunctive relief.
14.3 The parties hereby acknowledge and agree that the formula specified in clause above is a reasonable estimate of the loss which would be incurred by the loss of the person so employed or engaged.
15.2 If an event of force majeure shall continue for a period in excess of 6 weeks then either party shall have the right to terminate this Contract immediately by written notice to the other, subject to payment by the Client of all costs incurred and commitments undertaken by UMECast Ltd. up to the date of such termination. Provided that where such aggregated sum has been exceeded by the sums already paid to UMECast Ltd. hereunder, UMECast Ltd. shall reimburse the excess to the Client.
20.2 The rights of either party shall not be prejudiced or restricted by any indulgence or forbearance extended to the other and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provisions.
20.3 If any provision of these conditions is held by any authority to be invalid or unenforceable in whole or part the validity of other provisions of these Conditions and the remainder of the provisions in question shall not be affected hereby.
20.4 Where these terms and conditions refer to any specific rights or remedies available to UMECast Ltd. and its Client these rights and remedies are in addition to and/or without prejudice to any rights or remedies available to UMECast Ltd. and its Client under statute, at common law or otherwise.
20.5 This Contract and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the law of England and Wales.
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