A. THE CONTRACTOR SHALL:
- Commencing on the start date and continuing until completion of the services and delivery and acceptance of the delivery materials by the company, produce, direct or contribute to the filming or recording [as appropriate] of the project and, in connection with the project, render all such services as are usually rendered by a professional contractor [or service provider] in connection with the production of the project in accordance with the terms of this agreement;
- Perform the contractors services conscientiously and in a competent manner and to the full limit of the contractors technical, artistic and creative skill as, where and in willing co-operation with such persons as the company may require, and attend such locations / premises / studios as may reasonably be required by the company punctually and at all times conduct himself / herself in a professional manner;
- Promptly and faithfully comply with all instructions of the company as may be given in accordance with these terms including but not limited to those involving artistic taste and judgment;
- Obtain knowledge of and comply with all rules and regulations for the time being in force at such places where the project is shot, recorded or edited, and all OFCOM and other relevant guidelines and use every endeavour to ensure that such rules, regulations and guidelines are complied with by other personnel engaged in making the project;
- Work such hours as are necessary to fulfil the contractors obligations under this agreement accepting that this may involve working an average of more than 48 hours per week. The contractor will however not be required to work hours that are injurious to contractors or others health and safety. If the Working Time Regulations 1998 [the regulations] apply to this agreement, the contractor agrees that [i] the maximum weekly working time specified in regulation 4 of the regulations shall not apply to this agreement [ii] this condition 2[e] constitutes an agreement in writing for the purposes of regulation 5 of the regulations, and [iii] the contractor shall be entitled to terminate such agreement by giving to the company three months notice in writing [or the period of this engagement, whichever is the shorter];
- Perform the contractors role in accordance with the budget; production schedule; delivery schedule or other documentation approved by the company and notified to the contractor [and any revisions thereto notified to the contractor by the company] and in accordance with the script /
creative brief as approved by the company [but subject to any alterations or additions thereto that the company may direct] and shall in no event add to, subtract or depart from such script / creative brief [except for so called “on the floor” changes required by the exigencies of production], nor add to such budget nor alter such production schedule without the prior consent of the company in each instance;
- Use the contractors best endeavours to attain and maintain such a state of health as will enable the contractor to render the contractors services under this agreement as effectively as possible and comply with all health and safety policies and legislation that relate to the provision of the
- Comply with all regulations, policies and requirements of any third party, including without limitation health and safety policies and IT / internet use policies, where the services are performed at such third parties premises or offices or the services include the use of goods or services from such third party, including without limitation any studio, client’s premises or the company’s offices.
B. THE CONTRACTOR SHALL:
- Not without the written consent of the company order goods nor incur any liability nor enter into any commitment, contract or arrangement on the company’s behalf nor pledge the credit of the company nor hold him / herself out as being entitled to do so;
- Throughout the period of the engagement keep the company informed of the contractors whereabouts and their contact details;
- Apply for or assist the company in applying for work permits, passports and visas and such other permits and consents as may be necessary to enable the company to make full use of the contractors services hereunder;
- On the completion of the engagement deliver to the company all documents and materials of whatsoever kind or nature relating to the project prepared by the contractor or coming into the contractors possession.
- The contractor hereby assigns to the company absolutely the entire copyright [including without limitation any rental and lending rights and cable re-transmission rights] throughout the universe in all media whether now known or later developed for the full period of copyright and all renewals, revivals, reversions and extensions thereof [and thereafter, in so far as the contractor is able, in perpetuity] and, to the extent relevant, by way of present assignment of future copyright and all other rights whatsoever in all products of the contractors services hereunder, including, without limitation, all literary, dramatic, artistic and musical material contributed by the contractor to the project and in the project itself [the said copyright and products are herein referred to as “the products”].
- The contractor hereby irrevocably grants to the company throughout the world the right to and to authorise others to issue publicity concerning the contractors services in connection with the project and to use the contractors name, likeness and biography and the products in connection with the exploitation of the project and / or the advertising, publicising, and / or promotion of the project but in such a way that, without the contractors or the contractors prior written consent, such use shall not suggest that the contractor endorses, recommends or uses any commercial products or services other than the project and / or the company.
- The contractor recognises that the company has the unlimited right to edit, copy, alter, add to, take from, adapt and / or translate the products and the project and, with regard to the products and the project, hereby irrevocably and unconditionally waives [without prejudice to the contractors rights under condition the benefits of any provision of law known as “moral rights”] including without limitation any rights of the contractor under sections 77 and 80 of the Copyright Designs and Patents Act 1988 [“CDPA”] or any similar laws of any jurisdiction.
- The contractor shall and shall procure that the contractor shall do all such acts and execute such documents as the company may reasonably require to vest in or confirm to the company or its successors in title and licensees the copyright and all other rights assigned or granted or purported to be assigned or granted by the contractor to the company under this agreement. In the event that the contractor fails to undertake such acts or execute such documents within fourteen days of receipt of written notice from the company, the company as the duly appointed agent of the contractor may execute such documents or undertake such acts on the contractors behalf and shall provide details of such actions or copies of all such documentation thereafter to the contractor.
D. INTELLECTUAL PROPERTY
- In this clause the following words and expression shall have the following meanings:
- Contract Inventions: any Invention which is made wholly or partially by you at any time during the course of your contract with the Company [whether or not during working hours or using Company premises or resources, and whether or not recorded in material form].
- Contract IPRs: Intellectual Property Rights created by you in the course of your contract with the Company [whether or not during working hours or using Company premises or resources].
- Intellectual Property Rights: patents, rights to Inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use and preserve the confidentiality of information [including know-how and trade secrets] and any other intellectual property rights, in each case whether registered or unregistered and including all applications [or rights to apply] for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
- Inventions: any inventions, idea, discovery, development, improvement or innovation whether or not patentable or capable of registration and whether or not recorded in any medium.
- The contractor acknowledges that all Contract IPRs, Inventions and all materials embodying them shall automatically belong to the Company to the fullest extent permitted by law. To the extent that they do not vest in the Company automatically, you hold them on trust for the Company.
- The contractor acknowledges that, because of the nature of your duties and the particular responsibilities arising from the nature of the duties, the contractor has, and shall have at all time while you are contracted by the Company, a special obligation to further the interests of the Company.
- To the extent that legal title in any IPRs or Inventions does not vest in the Company by virtue of the above, you agree, immediately on creation of such rights and Inventions, to offer to the Company in writing a right of first refusal to acquire them on arm’s length terms to be agreed between the parties. If the parties cannot agree on such terms within 30 days of the Company receiving the offer, the Company shall refer the dispute for determination to an expert who shall be agreed between the parties. The expert’s decision shall be final and binding on the parties in the absence of manifest error, and the costs of arbitration shall be borne equally by the parties. The parties will be entitled to make submissions to the expert and will provide (or procure that others provide) the expert with such assistance and documents as the expert reasonably requires for the purpose of reaching a decision. You agree that the provisions of this clause shall apply to all Contract IPRs and Inventions offered to the Company under this clause until such time as the Company has agreed in writing that you may offer them for sale to a third party.
- THE CONTRACTOR AGREES:
- To give the Company full written details of all Inventions promptly on their creation;
- at the Company’s request and in any event on the termination of your contract / employment to give to the Company all originals and copies of correspondence, documents, papers and records on all media which record or relate to any of the IPRs;
- not to attempt to register any IPR’s nor patent any Invention unless requested to do so by the Company; and
- to keep confidential each Invention unless the Company has consented in writing to its disclosure by the contractor.
- The contractor waives all present and future moral rights which arise under the Copyright Designs and Patents Act 1988, and all similar rights in other jurisdictions relating to any copyright which forms part of the IPRs, and agree not to support, maintain or permit any claim for infringement of moral rights in such copyright works.
- The contractor acknowledges that, except as provided by law, no further remuneration or compensation other than that provided for in this agreement is or may become due to you in respect of your compliance with this clause. This clause is without prejudice to your rights under the Patents Act 1977.
- The contractor undertakes to use your best endeavours to execute all documents and do all acts both during and after your contract with the Company as may, in the opinion of the Company, be necessary or desirable to vest the IPRs in the Company, to register them in the name of the Company and to protect and maintain the IPRs and the Inventions. Such documents may, at the Company’s request, include waivers of all and any statutory moral rights relating to any copyright works which form part of the IPRs. The Company agrees to reimburse your reasonable expenses of complying with this clause.
- The contractor agrees to give all necessary assistance to the Company to enable it to enforce its Intellectual Property Rights against third parties, to defend claims for infringement of third party Intellectual Property Rights and to apply for registration of Intellectual Property Rights, where appropriate throughout the world, and for the full term of those rights.
- The contractor hereby irrevocably appoints the Company to be your attorney in your name and on your behalf to execute documents, use your name and do all things which are necessary or desirable for the Company to obtain for itself or its nominee the full benefit of this clause. You acknowledge that a certificate in writing, signed by any director or the secretary of the Company, that any instrument or act falls within the authority conferred by this agreement shall be conclusive evidence that such is the case so far as any third party is concerned.
E. THE CONTRACTOR HEREBY WARRANTS, REPRESENTS AND UNDERTAKES TO THE COMPANY THAT:
- The contractor has full power and authority to enter into this agreement and is free to enter into and to perform this agreement and the contractor has not entered and will not enter into any professional or other commitment which would or might conflict with the full and due rendering of the contractors services hereunder;
- The products [save to the extent that they incorporate material made available to the contractor by or at the instance of the company] will be wholly original in the contractor and will not infringe the copyright or any other rights of any third party;
- The products will not contain any defamatory matter or breach any contract or duty of confidence and that the contractor will ensure that the project does not incorporate any defamatory matter nor constitute contempt of court nor breach any provision of any statute or any regulations made thereunder;
- The contractor is and will remain for the period of the engagement a “qualifying person” within the meaning of Part 1 of the CDPA;
The rights hereby granted and assigned are vested in the contractor absolutely and are free from any encumbrances;
- The contractor is not now nor has at any time been subject to or suffering from any injury, ailment, incapacity, condition, indisposition or the like which might adversely affect the ability or suitability of the contractor to render any services required hereunder or prevent the contractor from rendering the contractors services hereunder;
- The contractor will indemnify and keep the company fully and effectively indemnified against all actions, costs, losses, claims and expenses of whatsoever kind [including reasonable legal fees and expenses of a counsel of the company’s choosing] or nature arising from any breach or non-performance of any of the warranties, representations, undertakings or obligations on the contractors part contained in this agreement or in respect of any liability or costs, claims or expenses arising out of this agreement. This provision shall survive the termination or completion of this agreement.
- The contractor shall take out and maintain all reasonable and prudent policies of insurance related to the business of the contractor and the provision of the services and shall, on request from the company, add the company as an additional insured to such policies and provide a copy of such policies to the company. The contractor shall not do anything which would invalidate such policies of insurance and shall notify the company in the event of any failure to maintain such policies of insurance.
- The contractor will not begin any work or incur any costs or expenses that BRADLEY or any other group-wide company would be liable for until they are in receipt of an official purchase order [PO] number.
- The fee payable to the contractor in respect of the contractors services under this agreement is exclusive of Value Added Tax [VAT], which shall be payable at the appropriate rate, if applicable. Any bonus payment set out in the SOW shall be contingent on the contractor fulfilling the terms of such bonus and to the contractor complying with the terms of this agreement. The fee includes equitable remuneration for the provision of services outlined. Where applicable, the fee includes equitable remuneration for the assignment of rental and lending rights and cable re-transmission rights referred to above. No further sums are payable to the contractor under this agreement whether in respect of the hours worked by the contractor or any payments for secondary uses or under any collective bargaining agreement. The company will not be responsible for any additional payment / transaction / gateway / bank / currency exchange charges incurred as a result of payment of the agreed fee through any third party payment service. Any additional charges, over above the agreed fee must be approved in writing with the Company, in advance of the contractor providing the service[s].
- Any payment due to the contractor under this agreement shall only be paid following the company’s receipt of a proper invoice displaying a valid purchase order number from the contractor. All invoices will be paid within 60 days of completion of the relevant services. The company reserves the right to retain some or all of the agreed fee subject to successful completion of the project and a full assessment by the company of the services provided by the contractor or in lieu of any resolution of any dispute that should arise during, as part of, or post-completion of the project.
- Personal expenses shall be subject to prior approval of the company and shall be subject to the provision of all relevant receipts or vouchers. All expenses shall be submitted to the company upon completion of the services and shall be paid by the company to the contractor following receipt of an appropriate invoice. Any expenses claims submitted later than seven days following completion of the services shall be paid entirely at the discretion of the company.
- If the company advances any money to the contractor in respect of expenses to be incurred by the contractor necessarily in the performance of the contractors services under this agreement and the contractor fails to account to company in writing for the moneys so advanced, together with written evidence that any claimed expenses have been incurred and paid for by the contractor, within seven days of the contractors receipt of a written request therefor from the company, the company shall be entitled to deduct from any moneys otherwise becoming due from the company to the contractor under this agreement a sum[s] equal to the amount of the said advance[s] in respect of which the contractor has failed to account to the company as aforesaid.
- The contractor will be solely responsible for all income tax and national insurance contributions due in respect of the rendering of the contractors services under this agreement and shall indemnify the company against any loss, costs, interest, liability, damages or proceedings whatsoever arising out of or in connection with any non-payment by the contractor of any income tax and / or national insurance contributions as well as any fines or fees incurred by the contractor.
G. LOSS / LIABILITY
- The company shall not be under any liability in respect of;
- Any claim for loss of publicity or opportunity to enhance the contractors reputation, even if the company delays or abandons production or exploitation of the project or the use of the contractors services notwithstanding that the company may have advertised the same;
- Any loss or damage to the contractors or the contractors property whilst in transit to or whilst at places where the contractor renders services under this agreement except to such extent, if at all, as the company may be able to enforce a claim for indemnity against a third party or under any policy of insurance effected by the company.
- The company’s liability hereunder shall be limited to the fee and any agreed expenses and the company hereby excludes any and all liability in respect of the services and the contractors conduct under this agreement or otherwise, save in respect of any personal injury or death of the contractor arising out of or in the course of the contractors engagement to the extent, if at all, as the same was due to the negligence of the company.
- The contractor shall not either during the course of performance of the services or at any time thereafter [other than in the proper course of the contractors duties hereunder and for the benefit of the company];
- Use, disclose or communicate to any person any confidential information which the contractor shall have come to know or have received or obtained at any time [before or after the date of this contract of employment] by reason of or in connection with the services; or
- Copy or reproduce in any form or by or on any media or device or allow others access to or to copy or reproduce recorded information whether or not in documentary form [“documents”] containing or referring to confidential or sensitive information [for the avoidance of doubt this includes any proprietary documentation or precedents provided by the company].
- Reveal, disclose, discuss or mention any aspect of the project, including their engagement with BRADLEY or group-wide companies, using any public forum or social networking, sharing platform and all media / press outlets including journalists and broadcasters.
- All documents containing or referring to confidential information at any time in the contractors control or possession are and shall at all times remain the absolute property of the company and the contractor undertakes, both during the course of performance of the services and afterwards:
- To exercise due care and diligence to avoid any unauthorised publication, disclosure or use of confidential information, sensitive information and any documents containing or referring to it;
- To deliver up any confidential information [including all copies of all documents]; and
- To do such things and sign such documents at the expense of the company as shall be reasonably necessary to give effect to this clause and / or to provide evidence that it has been complied with
- The restrictions in clause 7.1:
- Will not restrict the contractor from disclosing [but only to the proper recipient] any confidential Information which the contractor is required to disclose by law or any order of the court or any relevant regulatory body provided that the contractor shall have given prior written notice to the company of the requirement and of the information to be disclosed and allowed the company an opportunity to comment on the requirement before making the disclosure;
- Will not apply to confidential information which is or which comes into the public domain otherwise than as a result of an unauthorised disclosure by the contractor or any other person who owes the company an obligation of confidentiality in relation to the information disclosed.
- The contractor agrees that the restrictions set out in this clause 7 are without prejudice to any other duties of confidentiality owed to the company whether express or implied and are to survive the termination of this agreement.
- For the purposes of this clause 8 confidential information includes any information which may be imparted in confidence or be of a confidential nature relating to the business or prospective business or internal affairs of the company or any of the company’s clients and in particular all information relating to the development, production and exploitation of products, marketing or sales or any products or services of the company including without limitation lists of customers‘ and suppliers‘ names, addresses and contacts, service and product information, contractual arrangements with customers, advertising and promotional material, know-how, trade secrets, unpublished information relating to the intellectual property of the company and any other commercial, financial or technical information relating to the business of the company or to any customer or supplier, officer or employee of the company or to any member or person interested in the share of the company including other contractors.
- The contractor shall not during the course of the provision of services or for a period of twenty four months following termination of this agreement for any reason, either on the contractors own behalf or on behalf of any person, firm or company;
- Solicit or endeavour to entice away from the company an actual employee, or discourage from being employed by the company any person who, to your knowledge, is an employee or a prospective employee of the company; or
- Employ or procure another person to employ any such person; or
- Directly or indirectly in competition to the company, solicit or endeavour to entice away from the company any employee, contractor, client or prospective client of the company, or discourage such client or prospective client from retaining the services of the company.
- In this clause “client” shall mean any person, firm, company or other organisation whatsoever to whom or to which the company provided services during the one year immediately preceding the termination of this agreement and with whom or which, during such period the contractor has had personal dealings in the course of the provision of services hereunder; and “prospective client“ shall mean any person, firm, company, contractor, or other organisation whatsoever with whom or which the company shall have had negotiations or discussions regarding the possible provision of services during the twelve months immediately preceding the date of the termination of this agreement.
- While the restrictions in clause 7.1 above are considered by the parties to be reasonable in all circumstances, it is agreed that if any such restrictions, by themselves, or taken together, shall be adjudged to go beyond what is reasonable interests of the company but would be adjudged reasonable if part or parts of the wording thereof were deleted or modified, the relevant restriction or restrictions shall apply with such deletions or modifications as may be necessary to make it or them valid and effective. For the avoidance of doubt the contractor agrees to the restrictions set out in clause 6.1 above in order to provide protection for the confidential information, goodwill and customer / supplier connections of the company.
- The restrictions set out under this heading are without prejudice to any other fiduciary duties owed to the company whether express or implied and shall survive the termination of this agreement.
J. DATA PROTECTION
- The contractor confirms and agrees that the company may keep personal information relating to the contractor for the purposes of giving effect to this agreement and for the general administration of the company’s business. In signing this agreement the contractor expressly consents to:
- The transfer of this information to third party companies [which third party companies may or may not be outside the European Union] for the same purposes. The contractor agrees that the company may disclose specific information to its clients relating to its use of the contractors services.
- The company shall be entitled to the notice period in writing to the contractor or on immediate notice in the case of sub-clauses 10.6 and 10.7 below, to determine this agreement in any of the following events if;
- The contractor fails, refuses or neglects to perform any of the contractors obligations under clause 1 or clause 2 above or fails to remedy the same immediately after notification of the breach or is otherwise in breach of any material obligation, undertaking or warranty contained in this agreement;
- The contractor is incapacitated from rendering the contractors services under this agreement for more than two days either consecutively or in the aggregate.
- Any act or conduct of the contractor shall prejudice the production or successful exploitation of the project and such conduct is incapable of being remedied or is not remedied within two days of being so notified by the company;
- Any application for a visa, work permit or other permit for the contractor is unsuccessful;
- The contractor knowingly or negligently makes untrue or inaccurate replies or statements in relation to any material aspect of this agreement;
- During the period of the contract the contractor knowingly or unwittingly commits an act of dishonesty or gross misconduct; and
- During the period of the contract the contractor becomes bankrupt, or is convicted of any criminal offence other than a driving offence not carrying a custodial sentence.
- On determination of this agreement on any of the foregoing grounds, the company shall pay to the contractor remuneration due under this agreement up to the termination date of the contract, save that the company shall have no obligation to pay the contractor for any period during which the contractor did not perform its services under this agreement. The company will be under no further liability.
- Notwithstanding determination of this agreement for whatever reason;
- Each party hereto will remain entitled to enforce any claim against the other party or parties arising from any breach of this agreement that may have occurred before determination; and
- The company will remain entitled to all rights granted or assigned to it under this agreement.
- The company shall be entitled to assign the benefit of this agreement and of the contractors services hereunder to any third party and the contractor shall render such services to such assignee. If required, the contractor shall enter into a direct contract with the assignee on terms no less favourable to the contractor in so far as the terms apply to future performance than those contained in this agreement. The company shall remain liable to the contractor for all its obligations under this agreement notwithstanding any such assignment.
- Any notice required to be given to the company or the contractor under this agreement shall be in writing and served upon the addressee at such address as it may notify to the other party for such purpose and, if none, at the addressee’s address stated in the letter of engagement, by pre-paid first class mail or by personal delivery and shall be deemed to have been given, if delivered by hand, at time of delivery and, if posted, 48 hours [excluding the hours of Saturdays, Sundays and bank and public holidays in the country in which the company’s registered office is located] after posting an inland letter and eight days [excluding Saturdays and Sundays] after posting an overseas letter.
- This agreement sets out the entire agreement between the parties at the date hereof relating to the contractors services in connection with the project and supersedes any prior agreements or arrangements [whether oral or in writing] between the parties relating thereto. This agreement can only be modified by a written instrument signed by both parties.
- The contractor acknowledges that in the event of any default of any of the terms of this agreement by the company, its sole remedy will be an action at law for damages and in no event will it be entitled to rescind this agreement or receive any injunctive or other equitable relief whereby the rights granted to the company could be affected or the free and unrestricted exploitation or exhibition of the project could be restrained, hampered or otherwise interfered with.
- The contractor acknowledges that the services to be rendered by the contractor under this agreement are of a special, unique and extraordinary character, the loss of which cannot be reasonably or adequately compensated by damages in an action at law.
- No waiver, express or implied, by either party of any term or condition or any breach by the other of any of the provisions of this agreement shall operate as a waiver of any breach of the same or any other provision of this agreement.
- The headings in this agreement are for information only and do not form part of this agreement.
- In the event of any conflict between these Terms of Engagement, the Statement of Work and any other group-wide terms then the Statement of Work shall prevail.
- Nothing in the agreement shall be construed to constitute a partnership or a contract of employment between the parties.
O. GOVERNING LAW
- This agreement shall be construed under and governed by the laws of England and Wales and the parties shall submit to the exclusive jurisdiction of the English courts.