Production Terms and Conditions
This Terms Of Service Agreement (the “Agreement”) is between OH! Films Limited and the “Client” (collectively the “Parties”). This Agreement sets forth the legally binding terms for the Client’s use of OH! Films services. The Parties agree as follows:
1.1 OH! Films will always endeavour to complete its assignment and every effort is made to comply with the client’s wishes to perform the video and photographic services (the “Services”) as requested and described in the Client’s brief at the given date, time and location (collectively referred to as the “Project”). The time and date are subject to change by OH! Films for any reason including but not limited to: weather, personal injury, illness or act of God.
2.1 OH! Films will provide the video and UAV related equipment necessary to perform the Services, on occasion specialist equipment may need to be hired at additional cost that will be agreed with you before commencing any work.
- OWNERSHIP, COPYRIGHT, SHARING & USAGE:
3.1 The Parties agree that all work performed for the Client shall be considered as works made for hire as contemplated and defined in the United Kingdom Copyright, Designs and Patent Act 1988. The Parties acknowledge and agree that the Client will not hold any intellectual property rights in the recording of the Project including, but not limited to, copyright and trademark rights.
3.2 OH! Films has exclusive and complete ownership in the intellectual property inherent in the recording of the Project at any time after such recording. In addition, the Client agrees that OH! Films shall still maintain an exclusive, transferable, sub-licensable, royalty-free, worldwide license to use the stills photography and/or video.
3.3 Naturally we are proud of our work and OH! Films actively promotes its media and we do reserve the right to use ANY of our footage for our promotion, whether this be inclusion on our show reel for PR purposes to promote OH! Films.
3.4 The Client agrees and acknowledges that OH! Films may reasonably use the recording of the Project in their portfolio or for stock purchase. Further, OH! Films may display the Client’s name and logo on their website as a party with whom they have worked.
3.5 Unless a buyout of footage is specifically agreed and contracted, OH! Films retains the copyright of all “media” (still photography and video) content. The client purchasing the service of OH! Films will get full use of the material, however the client does not have the legal authority to sell the footage or allow 3rd party companies to use it or edit it without the express written agreement of OH! Films.
3.6 You (our client) acknowledge and agree that title and ownership of all ordered products shall remain with OH! Films until the full purchase price for the same has been satisfied to OH! Films.
3.7 Provided that OH! Films has executed the project assignment professionally and competently, Client agrees to pay OH! Films all fees and expenses in connection with a said assignment, whether or not Client uses any Image(s).
3.8 If you have any questions or issues with any the above we would ask you to kindly speak to us in advance of commencement of filming.
4.1 The Client agrees to the total amount stated in their Invoice.
- PAYMENT TERMS:
5.1 Client will make a one-time payment to OH! Films for the invoiced total
5.2 The Client shall pay OH! Films prior to any work being started as a reservation fee of 50% of project quote invoice. This fee is not refundable and will be credited to the final amount owed.
5.3 The Client will pay OH! Films multiple payments over a defined term.
5.4 In the case of work being required by the client to be done in phases, OH! Films reserves the right to partially invoice at stages. OH! Films reserves the right to add statutory late payment interest (Base Rate + 8%) to overdue accounts (Late Payment of Commercial Debts (Interest) Act 1998).
5.5 Following clients’ approval of all media viewed, all payments due are to be paid and cleared within 28 working days.
5.6 OH! Films will provide all required bank details for the electronic transfer of all agreed fees. Payments are by BACS only.
5.7 Where usage rights before full payment are granted, OH! Films reserves the right to rescind any such usage rights if Client fails to make timely payment.
5.8 OH! Films does not provide any receipts to Client. OH! Films invoice will serve as Client’s receipt for work performed and services rendered. Bank transfer fees and wire fees are the responsibility of the Client.
- PRIVACY OF PROPERTY AND PERSONS:
6.1 The Client warrants that they represent the owner or authority of any location or property being filmed, and have secured permission to film the selected location and/or property outlined for the Service.
6.2 The Client is responsible for notifying any person that shall be present at the Project, including but not limited to: Attendees and guests, the proper authorities, owners of property, government officials (where applicable), agents or representatives and any other applicable parties that video and/or audio will be recorded by OH! Films.
6.3 OH! Films is not responsible for obtaining model, property, trademark, copyright, or any other releases in connection with the project unless expressly stated in this Agreement. It is Client’s responsibility to obtain all necessary permissions for any media content that requires a release or other consents. Should OH! Films agree to deliver any releases, it is Client’s responsibility to determine whether such releases are suitable for Client’s purposes. OH! Films gives no warranty or guarantee as to the legal validity of any release.
6.4 OH! Films agrees to not include the likeness, image, or identifiable features of any person, property, or logo if instructed by the Client or persons present at the shoot.
- PHOTOGRAPHIC INTEGRITY AND ALTERATIONS:
7.1 The client will not make or permit any alterations, including, but not limited to, additions, subtractions, or adaptations, with respect of the media content alone or with any other material, without the prior express permission of OH! Films. Normal reproduction adjustments for colour, contrast, brightness, sharpness, and cropping are permitted.
7.2 Any alteration or modification of any media content will not constitute a work of joint authorship.
8.1 Each job is unique with many variable factors. Therefore, OH! Films prefers to estimate on an individual project basis, after having discussed or been fully briefed on the proposed project.
8.2 There are a number of variables which may affect the estimate including the time of year (affecting our work load), location of shoot, potential weather and other external shooting conditions, associated risk of taking the job on, requirements for additional CAA approvals and site visits.
8.3 Travel expenses for UK jobs will be billed at £0.45p per mile. The starting point of all mileage will be from our office base in Cambridge. If accommodation is required, that will also be billable though this will be agreed with the client beforehand.
8.4 We will be happy to discuss any of the above with you in greater detail and think you will find us fair, reasonable and transparent.
8.5 We are happy to provide any estimates in writing once we have received a full brief from the client and been able to discuss the requirements and expectations.
8.6 As a rough guide, filming costs are £550 + VAT for a whole day. Pre-visit liaison and risk assessment preparation are charged extra.
8.7 OH! Films would expect to spend 3-5 days editing a typical 2-5 minute video, including making a title sequence and all amendments necessary to get your approval, to give you an initial finished video. Editing costs £350 + VAT per day.
8.8 All other amendments to the video take time to re-edit and is chargeable to you. (Re-editing @ £350 per day is not included in the estimate).
8.9 Any additional costs (such as music, voiceovers and hired equipment) will be estimated and agreed with you before commencing any work.
8.10 A discount is offered for on-going site visits (monthly) or where multiple sites are within reasonable distances.
8.11 All charges exclude VAT, which will be charged at the prevailing rate, (where applicable) and are subject to these Terms and Conditions
9.1 Written estimates will be supplied for all work on receipt of a clear and accurate written brief from the client. Written briefs are required to ensure objectives are well defined for both the client and OH! Films and to avoid errors.
9.2 For aerial work, the brief may need to include, but is not limited to, full postal address with postcode, maps, site plans with boundaries and the North compass bearing clearly marked, ordnance survey grid references (6-figure) and any other material required to accurately identify the site from the air.
9.3 The estimate and fee will be inclusive of all preparatory work, provision of any written documentation (e.g. risk assessment where required) or permission required (e.g. by the Civil Aviation Authority, Air Traffic Control, Police and relevant landowners), travel and accommodation (where necessary) and post-production processing work and digital delivery of images.
9.4 For aerial work, unless otherwise stated, the estimate will be for the amount of aerial photography reasonably achievable within one day. The fee quoted will reflect the proposed uses of the images, as stated by the client, for which full personal reproduction rights will be granted. A series of assignments is treated as a set of individual contracts. Additional reproduction rights may be negotiated at a future date.
10.1 All enquiries will be treated in the strictest confidence
- PHOTOGRAPHIC or video MATERIALs SUPPLIED:
11.1 OH! Films uses cameras and monitors that are colour calibrated to industry standards. But due to variances in other monitors, software and computer platforms, the footage may display differently on other monitors. Therefore, neutrals will be set for mathematical neutrality and colour will be adjusted for pleasing tonalities. Whilst we will endeavour to provide an accurate colour rendition of the original scene, we cannot guarantee to match the colour perceived by the human eye.
11.2 It is Client’s responsibility to verify that the digital data, including colour profile, if provided, are suitable for reproduction of the expected quality and colour accuracy, and that all necessary steps are taken to ensure correct reproduction. If the data are not deemed suitable, OH! Films sole obligation will be to replace or repair the data, but in no event will OH! Films be liable for poor reproduction quality, delays, losses, expenses, or consequential damages, resulting directly, or indirectly, from defects or errors in digital files or their use.
11.3 All original photographic material (i.e. high-resolution digital RAW/tiff files and/or Video) remains the property of OH! Films.
- LEGAL REPRODUCTION RIGHTS, MORAL RIGHTS AND COPYRIGHT (COPYRIGHT, DESIGNS AND PATENTS ACT 1988) AND PROPERTY MISDESCRIPTIONS ACT 1991.
12.1 Limited reproduction rights of the commissioned material pass to the client upon full settlement of the final invoice. This allows reproduction for all uses stated on the quotation from OH! Films. By default, and in the absence of any stated use, this will be ‘General Marketing’. ‘General Marketing’ use excludes use for ‘merchandising’ (e.g. reproduction of an image for promotion on goods for resale), for which an additional fee will need to be negotiated.
12.2 Unless agreed in advance, use of the images by any third party (including, but not limited to, newspapers, magazines, book publishers, television, film and the Internet) will only be granted following written permission from OH! Films. This will incur a negotiated reproduction fee.
12.3 We abide by the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008. We will not alter our images to deliberately mislead the viewer. We remind users of our images that publishing old images (which were taken much earlier when the views were significantly different), without indicating capture date, could be misleading. Both of these activities may be considered as offences under these Regulations.
13.1 We grant you (our client) an exclusive licence to use the commissioned material as agreed previously for a period of 12 months from the date of delivery of the commissioned material from OH! Films to you (our client) or from the date that full payment has been received by OH! Films from you (our client) for the commissioned material, whichever is the later. After the period of the licence as stated it will have expired:
13.2 We grant you (our client) a non-exclusive licence to use the commissioned material in perpetuity and in agreement as previously expressed. And you (our client) agree that OH! Films may use the images ourselves and that OH! Films may also licence the images to third parties without reference to you (our client).
13.3 OH! Films shall be granted complete artistic licence including in relation to the poses photographed and the locations used. The OH! Films judgement regarding the locations/poses and number of images taken shall be final. Due to the vagaries of the weather and the willingness of subjects it may not be possible to capture all the images requested.
- AVAILABILITY AND BOOKING FOR AERIAL SHOOTS:
14.1 Due to the nature of the weather in the UK and nature of aerial shoots we are very flexible when working with clients. Many of our jobs are very last minute. However, we must have enough time to do pre-flight checks and ensure that the job can be undertaken safely, adhering to the rules & regulations of aerial filming and our operating licence.
15.1 If a site survey is needed prior to the quotation, the cost will be agreed and invoiced accordingly. The client must confirm in writing that it has permission to access the ground that will be used to take off and land.
- POSTPONEMENTS, CANCELLATIONS & WEATHER:
16.1 Remote controlled aerial filming is naturally affected by the flying conditions. If due to weather (i.e. rain, strong winds etc.) we are not able to shoot we shall not charge the client if we can make alternative arrangements for the shoot to happen at another time. If the shoot cannot be re-scheduled (which we usually know in advance of the carrying out the job) we will discuss cancellation policy and potential fees with the Client and come to a fair and reasonable compromise.
16.2 If a job is cancelled due to other issues and simply not re-scheduled due to the client no longer requiring our services and if OH! Films has incurred costs/fees unless by a pre-agreement, costs that have been incurred will have to be met by the client.
16.3 The client must notify OH! Films in writing if the project is cancelled, and the notice is not valid until confirmed in writing by OH! Films.
16.4 Cancellation fees are payable according to the following items: Preparatory works, such as site survey visits, written documentation, time and travelling charge where costs have been incurred by OH! Films following written instruction from you, these costs will remain due for payment in full, but pro rata to the overall agreed fees for the full service.
17.1 The client is responsible for sending an authorized representative to the shoot. If no representative is present, Client must accept OH! Films judgment as to the creation of the media content.
17.2 If Client requires a reshoot, Client will pay OH! Films an additional fee of one hundred percent of the cost stated in the quote or invoice for the original shoot, plus all expenses for the reshoot.
17.3 If a reshoot is required due to factors beyond the control of OH! Films, including but not limited to, weather conditions, acts of God, or the fault of a third party, OH! Films will not charge an additional fee and Client agrees to pay all expenses for the reshoot.
- CANCELLATION BY OH! FILMS:
18.1 If OH! Films cannot shoot due to adverse weather conditions, illness, mechanical failure, accident, acts of God or any other cause beyond our control, then we will attempt to procure the services of another professional photographer/ videographer to fulfil our obligations. If that does not succeed and the shoot cannot be rescheduled, OH! Films will refund all advance monies paid for that day and will have no further liability concerning this agreement, and OH! Films will not be responsible or liable for any other damages beyond the amount of this agreement. Costs incurred prior to the shoot day such as paid-for site visits and meetings are excluded and remain due for payment. This Limitation of liability will also apply if any footage is lost or damaged through equipment malfunction, or otherwise, without the fault of OH! Films.
18.2 If OH! Films cannot shoot due to reasons that only become evident once on site or for reasons that OH! Films was not advised of beforehand, then the full cost will remain due for payment. OH! Films may, at its sole discretion, offer a discount on a reshoot should one be scheduled.
- AERIAL FILMING/PHOTOGRAPHY:
19.1 Flight permission is generally granted within a day or so, however with UAV photography, permission from the Civil Aviation Authority (CAA), local Police, other authorities and relevant landowners, when needed, can take several weeks (CAA may require up to 28 days written notice of intention to fly). This is usually granted but certain height and/or other conditions may be applied. All work is subject to obtaining permitted and legal access from which to safely operate the UAV equipment.
19.2 During the operation it is the pilot’s responsibility to fly the drone safely and responsibly. The completion of work may be subject to alteration or cancellation due to cause or causes beyond our control. Should it become apparent that an elevation, angle or speed for a filming operation requested by the client would compromise the operational safety, OH! Films pilot will try to capture the images at another elevation, angle or speed but cannot guarantee that this will be as originally requested for filming. In this case, the best possible alternative shot(s) will be supplied and these will be deemed to fulfil the contract. It is always advisable to request a site visit and discussion prior to operational deployment. Usually these are part of the estimate; however, there may be a charge for a site visit depending on location and urgency.
19.3 The UAV and camera weigh approximately 2Kg. whilst the UAV has built-in self-stabilising measures, it is a flying platform and is subject to movement by the wind and will tilt whilst being held against the wind. This will impact on the image quality, steadiness and the angle of the picture(s). We will endeavour to obtain the best quality pictures for the conditions and certain adjustments can be made afterwards in post-processing. However, the images and video are not guaranteed to be steady and of broadcast standards (for instance).
19.4 Battery limitations for the UAV mean that each flight will last a maximum of approximately 20 minutes. This will normally generate up to 15 minutes of photographically usable flight time. After this time, the UAV must descend for a battery change.
- LIMITATION OF LIABILITY, WEATHER, FORCE MAJEURE, ACT OF GOD AND OTHER CONSTRAINTS:
20.1 As with any outdoor location photography, a successful outcome depends upon suitable weather conditions. A decision to photograph on a particular day is normally delayed to the last practical moment to maximise the chance of suitable weather.
20.2 If the work could not be completed due to client reasons (e.g., but not limited to, lack of access or unscheduled site activity etc.), the client may be charged to recover costs and time.
20.3 OH! Films will always endeavour to complete its assignments by proposed completion dates. However, due to weather and other operational constraints, OH! Films cannot guarantee completion on or by any specific date. It, therefore, cannot be held responsible for any missed publishing or other deadlines or any consequential costs involving the timing of the commission.
20.4 The client understands and accepts that event coverage will be as the operators professional expertise determines and that no one photograph/video will be more important than another. Special requests are not binding instructions, although every effort is made to comply with the client’s wishes.
20.5 In exceptional circumstances, OH! Films may not be able to completely fulfil or complete a contract at all. In these cases, it will refund part or all of any deposit received and not accept any other liability. In any event, the liability of OH! Films will be limited to the total value of the contract with no liability accepted for indirect and/or consequential loss.
20.6 OH! Films does not accept liability for errors resulting from incomplete or inaccurate instructions from the client’s written brief, nor for delays or restrictions caused by Air Traffic Control, CAA or the Police or similar bodies.
20.7 Whilst back-up copies of images are usually kept, OH! Films accepts no responsibility nor has liability for maintaining archive copies of photographic material after the work been delivered to and accepted by the client. The client is aware that optical, magnetic, electronic, and any other, media for storing digital data are inherently unstable. Client hereby releases OH! Films and his contractors, and representatives, from any liability for any claims, damages, or costs, arising from any media supplied by OH! Films becoming unusable.
20.8 OH! Films has all necessary insurances, including Public Liability Insurance of £5 million pounds, £1 million for aerial work, and Professional Indemnity Insurance of £250,000. These can be increased if necessary.
20.9 OH! Films and its employees and agents shall be under no liability for any injury, loss, or damage of any kind whether direct, consequential or special and howsoever caused resulting from or arising out of or incidental to:
20.10 Any negligence on the part of us or our employees (except insofar as the same causes death or personal injury) or
20.11 Our performance of or failure to perform or breach of any of its express implied obligations under the contract.
20.12 You shall indemnify us against any liability whatsoever (including any liability based on the negligence of you) which it may incur resulting from any claim made against you by any third party.
20.13 We accept no liability for delay or non-fulfilment of any term of the contract caused wholly or in part by “force majeure”, which expression shall be deemed to include war, strikes, lockouts, accidents, fire, scarcity or materials or any other cause or causes not within our direct control.
21.1 Any complaints should be raised with OH! Films in writing, within 28 days of first becoming aware of the matter and in any event within 28 days of receipt of the images/video.
- ACCEPTANCE OF TERMS:
22.1 The client may not assign or transfer this Agreement or any of the rights granted hereunder. This Agreement is binding upon and inures to the benefit of, Client and OH! Films, as well as their respective principals, employees, representatives, and successors. Client and its principals, and employees are jointly and severally liable for the performance of all payments and other obligations hereunder.
22.2 No amendment or waiver of any items is binding unless outlined in writing and signed by the parties. E-mail and electronic signatures will be considered legal and binding. However, the invoice may reflect, and Client is bound by, Client’s oral authorisations for any additional media content, fees, and expenses, that could not be confirmed in writing due to the immediate proximity of completing the photography assignment.
22.3 All work shall be completed in a professional manner, and in compliance with all applicable laws.
22.4 OH! Films shall not be liable for any delay due to circumstances beyond our control.
22.5 OH! Films is an independent Contractor and not an employee of the Client.
22.6 The Client shall indemnify, defend hold and OH! Films, our contractors and representatives, harmless against any and all claims, liability for loss, damages, costs and expenses, including reasonable legal fees and expenses, that may arise from Client’s use of any media content, or injury to persons or property resulting from the negligence or wilful misconduct of the Client.
22.7 OH! Films liability for loss, damage, or failure to deliver the media content (stills photography and/or video) shall be limited to the return of all payments made.
22.8 OH! Films will take all reasonable care in the production of the media content and the performance of this agreement. But OH! Films will not be liable for any loss, damages, or costs, suffered by Client, or by any third party, arising from Client’s use of any media content.
22.9 This Agreement will be deemed to be a contract made under the laws of the United Kingdom, and for all purposes will be interpreted in its entirety following these laws. Client specifically and irrevocably confers personal jurisdiction over it by the courts of the United Kingdom.
22.10 The client will pay all arbitration and court costs, reasonable legal fees, expenses, and legal interest, on any award or judgment in favour of OH! Films.
22.11 If any provision of this Agreement shall be unlawful, void, or for any reason is unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
22.12 In addition to oral and written agreements, use of any media content by Client will constitute acceptance of all the above terms and conditions.
22.13 This Agreement constitutes the entire and only agreement between OH! Films and Client with respect to its subject matter and supersedes all previous agreements, understandings, and communications, whether oral or written, between the two parties with respect to the subject matter hereof.
22.14 The client acknowledges that they have read this agreement and both understand and agrees with OH! Films regarding all of the Terms and Conditions.