RETAIL THERAPY MEDIA LIMITED t/a Retail Therapy Television
STANDARD TERMS & CONDITIONS OF PRODUCTION AND EDITING
STANDARD TERMS & CONDITIONS OF STUDIO HIRE Click Here
——————————————————————————————–
STANDARD TERMS & CONDITIONS OF PRODUCTION AND EDITING
1. Production Fees and Additional Charges
1.1 The Client shall pay to Retail Therapy Television the Production Fee, together with all Additional Charges arising
1.2. Subject to any special conditions of payment that may be agreed in writing between the parties to this Agreement, 50% of the Production Fee shall be payable when the Client has made a confirmed booking in writing. The remaining balance of the Production Fee shall be payable and cleared no later than three working days prior delivery of the assets. All payments to be made by bank transfer.
1.3 Any Additional Charges shall be paid within five days of the date of any invoice for such Additional Charges.
2. Retail Therapy Television’s production fees shall be exclusive of disbursements and expense items related to the agreed productions and editing such as messenger services, postage, overseas telephone charges, colour photocopying, photography and prints, disk or tape duplications, creation of audio and video streaming files, travel accommodation, subsistence, fax charges and similar items which will be invoiced to the client on the relevant project, or separately as necessary.
3. The client’s requirements must be clearly provided to Retail Therapy Television in writing before commencement of work and subject only to one set of minor alterations thereafter.
4 Major alterations to a project, not agreed prior to the commencement of work, must be made subject to a further written agreement.
5 A production will only be publicly released by Retail Therapy Television once the client approves all content as complete and satisfactory and confirms this in writing.
6 The client may terminate the contract at any time by written notice of termination.
7. When a client terminates the contract, they will remain liable to pay in full for all work previously undertaken and in progress by Retail Therapy Television unless any other written agreement is reached in advance.
8. Any monies held on account and unused will be returned subject to a 5% administration charge.
9. Retail Therapy Television reserves the right to refuse to use, publish or broadcast any information it considers obscene or morally unsuitable or which would breach copyrights, or which is libelous, defamatory or illegal.
10. Should such a submission occur, the client will be advised which information was deemed unsuitable, and requested to amend the information. If the client can show good reason to use the “unsuitable” information, its inclusion may be considered.
11. Retail Therapy Television cannot be held liable for loss or damage caused as a result of third party action or failure.
12. The client shall provide appropriate security arrangements for any filming outside of the United Kingdom for which Retail Therapy Television provides crew or equipment and such arrangements shall be notified to Retail Therapy Television in writing in advance of travel to that jurisdiction.
13. Retail Therapy Television cannot be held liable to any party for any errors on any medium after the client has agreed in writing that the content is correct and accurate and should be posted, published or broadcast.
14. Client contracts may be modified by agreement in writing at any time to add or delete services to better fit the client’s needs.
15. If a project requires additional content this is, in effect, a contract change. An amendment will be made to the original contract and, once approved, becomes contractually binding.
16. E-mail correspondence shall be sufficient to prove changes to agreements for the form and content of programmes.
17. Retail Therapy Television will not commence work on any project until a signed purchase order or equivalent signed document has been provided by the client.
18. In consideration of, and subject to, the final payment of full fees due to Retail Therapy Television by the client, Retail Therapy Television hereby assigns to the client with full title guarantee all the present and future copyright and other intellectual property rights howsoever arising in the content.
19. Any confidential or proprietary information which is acquired by Retail Therapy Television from a client company, person or entity will not be used or disclosed to any person or entity, except when required to do so by law. If required, Retail Therapy Television will sign and adhere to the conditions of any Confidentiality Agreement used by the client.
20. Any contract requiring Retail Therapy Television to work to specific deadlines provided within the written agreement will be deemed to include a proviso that the clients will make themselves reasonably available to communicate with Retail Therapy Television, its servants or agents, as necessary.
21 Retail Therapy Television office hours are 9.00 a.m. to 5.30 p.m. Monday to Friday. Studio Production hours are 8.00a.m. to 6.00 p.m.
22 Any claims must be made in writing to Retail Therapy Television within 7 days of receipt of the co0mmissioned product. If no claim is made within this period the client is deemed to have accepted the goods at the agreed price.
23. Should the client have cause to make any complaint about service or programmes, the complaint, if put in writing to a Director, will be acknowledged by Retail Therapy Television within 14 days and a detailed reply will be issued to the client within a further 14 days thereafter. In cases of complaint, all relevant work together with invoice and original materials should be returned to Retail Therapy Television.
24. Retail Therapy Television shall be under no liability if unable to carry out any provision of the contract for any reason beyond its control including (without limiting the foregoing) Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by suppliers or owing to any inability to procure materials required for the performance of the contract. During the continuance of such a contingency the client may, by written notice to Retail Therapy Television, elect to terminate the contract and pay for work done and materials used but subject thereto shall otherwise accept delivery when available.
25. These terms should be read in conjunction with Retail Therapy Television’s Studio Terms of Use where the client’s team is also hiring the Retail Therapy Television studio for the production.
26. This agreement will be governed by the laws of England and Wales.
STANDARD TERMS & CONDITIONS OF STUDIO HIRE
1 Bookings 1.1 The Hirer shall be entitled to make either a provisional booking or a confirmed booking for the Facilities. In the event that the Hirer does not confirm a provisional booking or in writing no later than 7 days before the commencement of the intended Period of Hire, the Hirer’s provisional booking shall be deemed cancelled without any liability on the part of Retail Therapy Media Ltd.
1.2 In the event of cancellation of a confirmed booking, the Hirer shall pay the Cancellation Fee in accordance with the Hire Agreement.
1.3 Should another prospective hirer wish to confirm a booking which covers partly or wholly any provisional booking already made by the Hirer under this Agreement, Retail Therapy Media Ltd shall notify the Hirer of the same and the Hirer shall be required to confirm its provisional booking in writing by the end of the Business Day following the day on which such notification takes place. If not confirmed by the Hirer within such period, the Hirer’s provisional booking shall be deemed cancelled without any liability on the part of Retail Therapy Media Ltd.
2 Hiring Fee and Additional Charges
2.1 The Hirer shall pay to Retail Therapy Media Ltd the Hiring Fee, together with all Additional Charges arising.
2.2 Subject to any special conditions of payment that may be agreed in writing between the parties to this Agreement, 50% of the Hiring Fee shall be payable when the Hirer has made a confirmed booking for the Facilities or, in the case of a provisional booking, on such booking being confirmed by the Hirer. The remaining balance of the Hiring Fee shall be payable and cleared no later than three working days prior to the commencement of the Period of Hire.
2.3 Any Additional Charges shall be paid within seven days of the date of any invoice for such Additional Charges issued by Retail Therapy Media Ltd to the Hirer.
2.4 The client must raise any queries in relation to an invoice and communicate those queries IN WRITING, not later than seven days from the date of invoice and (for the avoiodance of doubt) only that proportion of any invoice which iis in dispute, as agreed in writing by one of Retail Therapy Media Limited directors, may be witheld from payment.
3 Additional Facilities
3.1 If the Hirer requires any Additional Facilities, the Hirer shall inform Retail Therapy Media in writing setting out the Additional Facilities required, and Retail Therapy Media Ltd shall specify the Additional Charges to be paid by the Hirer to Retail Therapy Media Ltd in relation thereto. The availability and provision of Additional Facilities shall be determined by Retail Therapy Media Ltd in its absolute discretion.
3.2 Whilst Retail Therapy Media Ltd will try to accommodate the Hirer’s requirements for Additional Facilities, the Hirer acknowledges that Retail Therapy Media Ltd must also consider the requirements of other third parties wishing to use Retail Therapy Media Ltd’s facilities.
4 Studio parking
4.1 Parking on the Premises of Retail Therapy Media Ltd is in the absolute discretion of Retail Therapy Media Ltd. All vehicles the property of, or under the control of, the Hirer, any of the Hirer’s Staff or any other persons visiting the Hirer and permitted onto the Premises of Retail Therapy Media Ltd shall be required to park in the designated car parks or as Retail Therapy Media Ltd may direct and shall not impede the free flow of traffic around the Premises of Retail Therapy Media Ltd nor park in neighbouring private roads. The Hirer shall use its best endeavours to ensure that adequate transport arrangements are made to prevent any such impediment.
5 Studio and other regulations
5.1 The Hirer shall, and shall procure that all of its Staff shall, at all times observe and fully comply with such studio and/or health and safety regulations as Retail Therapy Media Ltd shall from time to time prescribe. In particular (but without limiting the generality of the preceding wording), it shall be the responsibility of the Hirer to ensure that all of its Staff at all times adhere to the prohibition on smoking at the Location and in any other buildings or areas on the Premises of Retail Therapy Media Ltd which are designated as “No Smoking” and do not drink alcohol on the Premises of Retail Therapy Media Ltd, unless in an authorised area, or take recreational drugs of any kind whatsoever.
5.2 Retail Therapy Media Ltd shall be entitled to refuse entry to, or remove from the Premises of Retail Therapy Media Ltd, any person not bona fide employed by, or acting on behalf of, the Hirer or acting in accordance with the Hirer’s instructions in connection with the Hirer’s use of the Facilities or any other person who fails to comply with Retail Therapy Media Ltd’s regulations or any provision of this Agreement or whom Retail Therapy Media Ltd reasonably considers (in its absolute discretion) to be a nuisance or danger to others on the Premises of Retail Therapy Media Ltd.
5.3 The Hirer shall keep the Location clean and tidy at all times and shall be responsible for the collection and removal from the Premises of Retail Therapy Media Ltd of all construction waste and other rubbish.
5.4 In the event that the production/programme(s) requires the presence of guests at the Location, the Hirer shall ensure that all appropriate regulations and precautions in respect of the safety of such guests are observed and shall seek, and abide by, the advice and observations of the relevant fire office in every case. The Hirer shall provide Retail Therapy Media Ltd in advance with details of the arrangements that it intends to make in relation to the safety of such guests.
5.5 The Hirer shall not allow any Minor onto the Location and/or the Premises of Retail Therapy Media Ltd for any reason unless the Hirer has given prior written notification to Retail Therapy Media Ltd of its intention to do so, listing the names of all such Minors attending and the names of their supervisors and specifying the dates and times they will be on the said premises and the parts of the said premises to which they are to have access. The Hirer is responsible for all minors in compliance with the CYPA – Children and Young Persons Act 2004. All such minors will be appropriately licensed and chaperoned. The Hirer shall provide to Retail Therapy Media Ltd a completed risk assessment relevant to the presence of Minors, whether as audience members or as the Hirer’s staff. The Hirer shall ensure that any such Minors are supervised at all times.
5.6 The Hirer shall ensure all exit routes and other ‘fire lanes’ (including gantries and walkways) are kept clear of any obstruction and are regularly inspected. Under no circumstances shall exits or means of escape be obstructed or locked during occupation of the Location. The Hirer shall also ensure that all fire extinguishers (as provided by Retail Therapy Media Ltd) are in their correct positions. The Hirer shall promptly report any discharge of fire extinguishers to Retail Therapy Media Ltd, following which Retail Therapy Media Ltd shall arrange for such fire extinguishers to be refilled or replaced (as appropriate) at the Hirer’s expense.
5.7 The Hirer shall permit any member of Retail Therapy Media Ltd’s Staff or any inspector appointed by the Health and Safety Executive, Fire Authority or similar authority to inspect the Location at any reasonable time without prior notice. The Hirer shall fully co-operate with any such inspection.
5.8 Retail Therapy Media Ltd shall be entitled, without prejudice to any other rights it may have, to prevent or otherwise preclude the Hirer or its personnel from carrying out any activity which, in the opinion of Retail Therapy Media Ltd and/or any inspector, poses an unacceptable risk of damage to property, injury or loss of life.
5.9 The Hirer shall not (save with the prior written consent of Retail Therapy Media Ltd) store or use, or permit to be stored or used, at the Location and/or the Premises of Retail Therapy Media Ltd any guns, explosives, wild or dangerous animals, toxic, inflammable or other dangerous or explosive substances (including liquid propane gas) or any other materials the keeping of which may contravene any statute, local regulation or bye-law or constitute a nuisance to Retail Therapy Media Ltd or any other users of the Premises of Retail Therapy Media Ltd or to owners and/or occupiers of neighbouring property PROVIDED THAT nothing shall prevent the Hirer from using any materials reasonably necessary for the purpose of producing effects reasonably required for the type of production being undertaken at the Location.
5.10 The Hirer shall not use, or permit to be used, any explosives or any fire effects, nor shall it start, or cause to be started, any fire at the Location and/or the Premises of Retail Therapy Media Ltd, except with the prior written approval of Retail Therapy Media Ltd (in its absolute discretion).
5.11 The Hirer shall give a minimum of five clear days’ notice in writing to Retail Therapy Media Ltd of its intention to use explosives or fire effects and, in the case of explosives, any work must be carried out under the supervision of a properly qualified explosives expert approved in advance by Retail Therapy Media Ltd. No consent given by Retail Therapy Media Ltd hereunder shall, or shall be deemed to, relieve the Hirer of any of its obligations under this Agreement or the general law.
6 Hirer responsible for equipment & personnel
6.1 All the equipment, materials and personnel supplied by Retail Therapy Media Ltd at the request of the Hirer forming part of the Facilities shall, for the duration of the Period of Hire, be under the Hirer’s care, control and direction.
6.2 The Hirer shall, and shall procure that all of its Staff shall, fully comply with the terms and conditions upon which Retail Therapy Media Ltd contracts with third parties for the provision of such equipment, materials and personnel. Retail Therapy Media Ltd shall provide the Hirer with a copy of such terms and conditions for information and reference, upon request. For the avoidance of doubt, the terms and conditions of such third parties shall be deemed to be incorporated into this Agreement and the Hirer agrees to indemnify Retail Therapy Media Ltd in respect of any damages, loss, costs, claims and expenses incurred or suffered by Retail Therapy Media Ltd arising out of, or in connection with, a breach by the Hirer or its Staff of the obligations contained in this clause 7.2.
6.3 The Hirer shall be responsible for the care, control, security, insurance and maintenance of all property (including, without limitation, the Materials) of whatsoever nature brought onto the Location and/or the Premises of Retail Therapy Media Ltd by the Hirer or its Staff, as well as the health and welfare of all of its Staff.
6.4 The Hirer shall, and shall procure that its Staff shall, observe and fully comply with all applicable laws, rules, regulations, orders and requirements relating to the production of films, television programmes, sound recordings and video recordings made in pursuance of any act of parliament, statutory instrument or by any relevant local or other authority or council or otherwise and with any codes of practice and procedures, including, without limitation, those relating to fire, security, health and safety, livestock, animals, the employment of children and the storage and use of guns, explosives and other flammable and toxic substances.
6.5 Without prejudice to the generality of clause 6.4:
6.5.1 the equipment comprised in the Facilities shall be operated with sufficient care and skill by the Hirer’s Staff who shall have sufficient professional experience in the use of the same; and
6.5.2 the Hirer shall, and shall procure that its Staff shall, fully comply with or procure compliance with all reasonable requests made by Retail Therapy Media Ltd’s safety advisor (or his appointed representative) in connection therewith and shall not bring onto, or use at, the Location and/or the Premises of Retail Therapy Media Ltd any hazardous object or substance (inflammable, toxic or otherwise) which would or might conflict with any statute or regulation made thereunder, including, without limitation, the Control of Substances Hazardous to Health Regulations 1988 (as amended or replaced from time to time).
6.6 Prior to the commencement of the Period of Hire, the Hirer shall prepare a risk assessment of its use of the Facilities for submission to Retail Therapy Media Ltd’. The Hirer shall nominate a representative who shall be responsible for overseeing the use of the Facilities and ensuring that they are used in accordance with the risk assessment. The Hirer’s nominated representative shall act as a liaison with Retail Therapy Media Ltd’ as required.
7 Cancellation
7.1 In the event of the cancellation by the Hirer of a confirmed booking, the Hirer shall pay the following cancellation fee (the ‘Cancellation Fee’) to Retail Therapy Media Ltd:
7.1.1 less than 7 days (i.e. up to and including the 7th day) prior to the commencement of the Period of Hire: 100% of the Hiring Fee,
together with any expenses (not included in the Hiring Fee) incurred by Retail Therapy Media Ltd in connection with the booking and/or cancellation (the ‘Expenses’).
7.2 The Cancellation Fee and the Expenses shall be payable within seven days of the date of cancellation by the Hirer, without prejudice to any other rights or remedies which Retail Therapy Media Ltd may have. Both Retail Therapy Media Ltd and the Hirer acknowledge that the Cancellation Fee and the Expenses represent a genuine pre-estimate of the loss likely to be suffered by Retail Therapy Media Ltd as a result of such cancellation.
8 Materials 8.1 If Retail Therapy Media Ltd, at the Hirer’s request, agrees to store any Materials on the Premises of Retail Therapy Media Ltd, it shall charge for such services at agreed rates or, in the absence of agreement between the parties, at the Current Rates. Any such storage shall be entirely at the Hirer’s own risk. 8.2 Unless otherwise agreed in writing signed by an authorised officer of Retail Therapy Media Ltd, the Hirer shall be responsible for the delivery and collection of the Materials. Any damage to the Materials whilst in transit (including, without limitation, where Retail Therapy Media Ltd agrees to deliver and/or collect such Materials) shall be at the Hirer’s own risk. It is the Hirer’s sole responsibility to ensure that all Materials are properly and securely packaged whilst in transit and in storage.
9 Lien
9.1 Retail Therapy Media Ltd shall have a lien over the Materials in respect of any monies due to it from the Hirer and/or any liabilities incurred by Retail Therapy Media Ltd arising out of, or in connection with, this Agreement. Retail Therapy Media Ltd shall be deemed to have exercised its lien upon such monies and/or liabilities falling due or being incurred.
9.2 If Retail Therapy Media Ltd’s lien remains unsatisfied upon the expiry of a period of three months following the date it is deemed exercised, Retail Therapy Media Ltd shall be entitled to sell or dispose of the Materials or any part of them and apply the proceeds of any such sale or disposal towards payment of the monies due to Retail Therapy Media Ltd and/or incurred by Retail Therapy Media Ltd, including the costs of such sale or disposal.
10 Warranties given by the Hirer
The Hirer warrants to Retail Therapy Media Ltd that:
10.1 it has and shall continue to have throughout the Period of Hire, or shall procure and pay for, any required licence(s) in respect of all copyright material it intends to use in its production/programme(s), including, without limitation, in relation to music and/or lyrics; 10.2 it has and shall continue to have throughout the Period of Hire, or shall procure and pay for, any required consent(s) in respect of all persons appearing in, or involved with, its production/programme(s);
10.3 it is the owner of, or has and shall continue to have throughout the Period of Hire the consent of the owner and lawful possession of, the Materials;
10.4 in using the Facilities, it shall not directly or indirectly infringe any copyright, patent, design right, trade mark or other industrial or intellectual property rights of any third party;
10.5 its production/programme(s) will not contain anything defamatory or obscene or which would contravene any law or regulation or duty at common law;
10.6 all of its Staff are qualified to carry out their tasks and are fully conversant with, and abide by, safe working practices, and that risk assessments are carried out before any task is undertaken; and
10.7 it shall not, and shall procure that its Staff shall not, make any alterations of any nature or kind to the Location, the Facilities or any equipment or property belonging to Retail Therapy Media Ltd.
11 Credit
The Hirer agrees to accord Retail Therapy Media Ltd a credit specifying that the production/ programme(s) was recorded at Retail Therapy Media Ltd Studios or such other studios where the production/programme(s) was recorded.
12 Hirer’s liability
12.1 The Hirer shall compensate and indemnify Retail Therapy Media Ltd and/or Retail Therapy Media Ltd’s Staff against, and hold them harmless from, all direct or indirect damages, loss, costs, claims and expenses which Retail Therapy Media Ltd or its Staff may suffer or incur (including consequential loss, loss of profit, loss of rent, loss of revenue, loss of reputation and all interest, penalties and legal and other professional costs and expenses) by reason of:
12.1.1 the use by the Hirer of the Facilities and/or the Additional Facilities and/or any other facilities, goods and/or services supplied under this Agreement;
12.1.2 any damage to the equipment and/or materials forming part of the Facilities or the Premises of Retail Therapy Media Ltd and/or any delay or failure in returning the equipment forming part of the Facilities in accordance with this Agreement;
12.1.3 any act of defamation, breach of confidentiality or infringement of copyright, patent, design right, trade mark or other industrial or intellectual property rights involved in, or arising out of, the production/programme(s); or
12.1.4 the Hirer’s negligence, default or breach of this Agreement (including breach of the warranties set out in clause 11 and/or any claim brought against Retail Therapy Media Ltd by a third party),
save to the extent that any such damages, loss, costs, claims or expenses are caused by the negligent act of Retail Therapy Media Ltd or any of its Staff (except where Retail Therapy Media Ltd or such Staff are acting under the direction and control of the Hirer or the Hirer’s Staff).
12.2 The Hirer shall, at the Hirer’s own expense, replace all or any equipment or property of Retail Therapy Media Ltd which is lost or damaged in accordance with clause 13.1 with new equivalent replacement equipment or property (irrespective of wear or tear to the lost or damaged equipment or property). The Hiring Fee shall continue at the daily rate until the date on which Retail Therapy Media Ltd receives payment from the Hirer for the full replacement cost of such Facilities or for the cost of repair of such Facilities, as applicable.
13 Hirer’s insurance cover
13.1 Without prejudice to clause 13, and as a condition of this Agreement, the Hirer shall:
13.1.1 at the Hirer’s expense, insure and keep insured throughout the Period of Hire against all risks to the equipment and/or materials forming part of the Facilities and/or the Additional Facilities with an indemnity limit of at least five million pounds sterling in respect of any one claim, occurrence or incident;
13.1.2 at the Hirer’s expense, insure and keep insured throughout the Period of Hire against all public liability risks in relation to the use of the Facilities and/or the Additional Facilities with an indemnity limit of at least ten million pounds sterling in respect of any one claim, occurrence or incident;
13.1.3 at the Hirer’s expense, extend such insurance as necessary to provide similar cover for any extension to the Period of Hire as may be agreed between the parties;
13.1.4 throughout the Period of Hire and any extension thereto as may be agreed between the parties, not cause or permit to be caused any breach of any insurance policy with respect to the Facilities and/or the Additional Facilities; and
13.1.5 on request, supply to Retail Therapy Media Ltd prior to the commencement of the Period of Hire such evidence as Retail Therapy Media Ltd may require to show that such insurance is in full force and effect and that all necessary premiums have been paid.
13.2 The Hirer shall, as a condition of this Agreement, procure that its insurers shall:
13.2.1 note on any insurance cover that Retail Therapy Media Ltd shall be covered by such policy in respect of all claims arising out of, or in connection with, activities at the Location and/or the Premises of Retail Therapy Media Ltd which are risks covered by the policy; and
13.2.2 notify Retail Therapy Media Ltd in the event of any late premium payment by, or any breach of the terms of such insurance cover on the part of, the Hirer.
13.3 If the Hirer fails to take out and maintain insurance in accordance with clauses 14.1.1 to 14.1.3 (inclusive) or to produce sufficient evidence (in the opinion of Retail Therapy Media Ltd) in accordance with clause 14.1.5 that such insurance is in full force and effect, Retail Therapy Media Ltd shall be entitled, at the Hirer’s expense, to take out and maintain such insurance and shall be reimbursed on demand by the Hirer (including for the costs incurred by Retail Therapy Media Ltd in effecting such insurance).
13.4 For the avoidance of doubt, the insurance policies referred to in clauses 14.1.1 and 14.1.2 which are to be effected by the Hirer are primary insurance and, in the event of an insurance claim, Retail Therapy Media Ltd’s insurance shall not contribute to such claim. The Hirer agrees and undertakes, at its own cost, to take all steps and do all things, including taking legal action, as are necessary to obtain full indemnification under the Hirer’s insurance policies. All monies received under the Hirer’s insurance policies shall be paid direct to Retail Therapy Media Ltd.
13.5 The Hirer must insure all the Materials to their full replacement value, including re-shoot costs, against any loss and/or damage however caused. The Hirer is advised to make a duplicate master of the Materials (e.g. interpositive or sub master video/audio tape).
14 Exclusion/limitation of liability of Retail Therapy Media Ltd
14.1 Subject to the provisions of this clause 15, Retail Therapy Media Ltd warrants that any services provided by Retail Therapy Media Ltd or its Staff under this Agreement will be provided with reasonable care and skill.
14.2 Except as otherwise expressly provided in this clause 15, all warranties or other similar terms implied by statute, common law or custom are excluded to the fullest extent permitted by law.
14.3 Subject to clause 15.5, Retail Therapy Media Ltd’s aggregate liability (whether such liability arises in contract, tort (including negligence) or otherwise) to the Hirer for Loss arising out of, or in connection with, this Agreement caused or contributed by Retail Therapy Media Ltd shall not in any circumstances exceed, in aggregate, an amount equal to sums paid by the Hirer to Retail Therapy Media Ltd in respect of the Hiring Fee.
14.4 Notwithstanding any other provision of this Agreement, but subject always to clause 15.5, Retail Therapy Media Ltd shall not under any circumstances be liable to the Hirer (whether such liability arises in contract, tort (including negligence) or otherwise) for:
14.4.1 loss of profit, loss of or damage to data, loss of revenue, loss of anticipated savings or interest, loss of or damage to reputation or goodwill, loss of business and/or contract or any indirect, special or consequential damages, loss, costs, claims or expenses of any kind, in each case whatsoever and howsoever caused, including, without limitation, by breach of contract, breach of statutory duty or negligence; 14.4.2 any Loss to the extent that it results from any failure or delay by the Hirer (or any of its Staff) to perform any of its obligations under the Agreement; and/or
14.4.3 any Loss unless the circumstance giving rise to such Loss is notified to Retail Therapy Media Ltd by the Hirer within seven days of the date upon which the Hirer became aware of such circumstance (or the date upon which it ought reasonably to have become so aware) and Retail Therapy Media Ltd fails to remedy the same within 30 days of such notification.
14.5 Notwithstanding any other provision of this Agreement, nothing in this Agreement shall exclude or restrict Retail Therapy Media Ltd’s liability for fraud or death or personal injury resulting from its own negligence (or the negligence of its Staff) or any other liability which may not by law be excluded or restricted.
14.6 Retail Therapy Media Ltd shall not be liable to the Hirer for any loss or damage to any image, sound, picture, music, work or any other intangible property recorded on, or incorporated into, or in any other way relating to, the Materials. Retail Therapy Media Ltd’s liability for loss or damage to the Materials shall be limited to the replacement costs of the tangible property.
15 Force Majeure
15.1 Retail Therapy Media Ltd shall not be liable to the Hirer for any delay in performing, or for any failure to perform, its obligations under this Agreement if, and to the extent that, such delay and/or failure resulted from any event or circumstance beyond Retail Therapy Media Ltd’s reasonable control, including (without limitation) fire, flood, act of God, explosion, war, revolution, insurrection, riot or civil commotion, national or local emergency, act of terrorism, strike, lock-out or other form of industrial dispute, any difficulty in obtaining raw materials, labour, fuel or parts of machinery, any power failure or breakdown in machinery or any breakdown, stoppage or failure of lighting, heating or ventilation at the Location (a ‘Force Majeure Event’).
15.2 If Retail Therapy Media Ltd shall be affected by a Force Majeure Event, it shall notify the Hirer as soon as reasonably practicable of the nature and extent thereof and, if the Force Majeure Event in question prevails for a continuous period in excess of 14 days, either party shall be entitled to give notice to the other to terminate this Agreement, but without prejudice to the rights and remedies of either party in respect of any antecedent breach.
15.3 Retail Therapy Media Ltd reserves the right to cancel this Agreement at any time before the commencement of the Period of Hire in the event that Retail Therapy Media Ltd is affected by a Force Majeure Event, in which circumstances Retail Therapy Media Ltd shall return to the Hirer any monies then paid by the Hirer and Retail Therapy Media Ltd shall have no further liability to the Hirer under this Agreement.
16 Term and termination
16.1 This Agreement shall commence on the date of this Agreement and, unless and until terminated in accordance with its terms, shall continue in full force and effect for the Period of Hire and any extension thereto as may be agreed between the parties.
16.2 Retail Therapy Media Ltd may terminate this Agreement forthwith on giving written notice to the Hirer in the event of:
16.2.1 the Hirer defaulting in payment of the Hiring Fee or any Additional Charges or other sums due to Retail Therapy Media Ltd;
16.2.2 the Hirer ceasing to carry on business, being unable to pay its debts, being subject to an administration order, receivership, winding up, bankruptcy or moratorium provisions; or
16.2.3 any breach by the Hirer or any of its Staff of any provision of this Agreement which, if capable of being remedied, shall not have been remedied within 14 days of notice from Retail Therapy Media Ltd to the Hirer identifying such breach and requiring it to be remedied. If there remains less than 14 days before completion of the Period of Hire at the time of the breach, then the period available to remedy such breach shall be two days.
16.3 On termination or expiry of this Agreement for whatever reason:
16.3.1 the Hirer shall ensure that all Materials (including construction and other materials) are immediately removed from the Premises of Retail Therapy Media Ltd, failing which Retail Therapy Media Ltd shall have the right to remove and store such items at the Hirer’s risk and expense or retain, destroy, sell or otherwise dispose of the same without any liability to the Hirer; and
16.3.2 unless otherwise agreed in writing by Retail Therapy Media Ltd, the Location shall, at the Hirer’s expense, be reinstated to the same state and condition (including colour) as at the commencement of the Period of Hire.
16.4 Until such time as the Location has been vacated and reinstated to the same state and condition (including colour) as at the commencement of the Period of Hire, the Hirer shall be deemed to be making additional use of the Location and/or the Facilities and shall be liable to pay additional hire charges on a daily basis at the Current Rates.
17 Assignment/sub-contracting 17.1 Retail Therapy Media Ltd shall be entitled to sub-contract or otherwise delegate any of its obligations under this Agreement.
17.2 Retail Therapy Media Ltd shall be entitled to transfer its rights and its obligations under this Agreement to any one or more persons and the Hirer hereby consents to any such novation as may be notified to it by Retail Therapy Media Ltd. Upon any such novation, references to Retail Therapy Media Ltd in this Agreement, except where the context otherwise requires, shall be deemed to be references to the person or persons to whom Retail Therapy Media Ltd has transferred its rights and obligations.
17.3 The Hirer shall not be entitled to assign any of its rights or transfer any of its obligations under this Agreement.
18 Confidentiality
18.1 The provisions of this Agreement are strictly confidential and shall not be disclosed to any other person (without the other party’s prior written consent), save that either party may disclose the same to its own Staff under conditions of confidentiality (and then only to the extent required for the proper performance of this Agreement) or to the extent required by the general law, any regulatory requirement or regulatory authority.
18.2 If the Hirer indicates in writing to Retail Therapy Media Ltd that the Materials are confidential, Retail Therapy Media Ltd shall use its reasonable endeavours to keep them confidential, but shall not otherwise owe the Hirer any duty of confidentiality in relation to the same.
19 Miscellaneous
19.1 In the event of any inconsistency between any special conditions to this Agreement, the Production Quotation and/or the standard terms and conditions of studio hire as set out in this Schedule 3, the special conditions and/or the standard terms and conditions of studio hire shall prevail. In the event of any inconsistency between the special conditions and the standard terms and conditions of studio hire, the special conditions shall prevail.
19.2 The terms of this Agreement, the Production Quotation, the Additional Facilities Form (if any) and any other documents referred to in this Agreement represent the entire agreement made between the parties and supersede all prior representations, agreements, arrangements and understandings between the parties (whether written or oral) relating to the subject matter of this Agreement.
19.3 No variation of this Agreement shall be binding on the parties unless made in writing, signed by or on behalf of a duly authorised representative of each of the parties and expressed to be such a variation.
19.4 If any provision of this Agreement (or any part thereof) shall be found by any court or administrative body of competent jurisdiction to be unenforceable, invalid or illegal, it shall be severed from this Agreement and shall not affect the enforceability of the remainder of this Agreement, unless:
19.4.1 either party can demonstrate that it would not have entered in to this Agreement without the inclusion of that term; or
19.4.2 the exclusion of the term fundamentally alters the balance of the rights and obligations of the parties.
19.5 In the circumstances referred to in clause 20.4, the parties agree that they shall enter into negotiations in good faith to agree a substitute clause which achieves so far as possible the objectives and effect of the unenforceable, invalid or illegal provision.
19.6 No failure or delay by any party in exercising any remedy, right, power or privilege under, or in relation to, this Agreement shall operate as a waiver of the same.
19.7 No single or partial exercise of any remedy, right, power or privilege by any party under or in relation to this Agreement shall preclude any other or further exercise thereof or the exercise of any other such remedy, right, power or privilege.
19.8 This Agreement shall be subject to the laws of England and the parties agree to submit to the non-exclusive jurisdiction of the courts of England over any claim or matter arising out of, or in connection with, this Agreement.
19.9 Unless a right of enforcement is expressly provided herein, it is not intended that a third party should have the right to enforce a provision of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 (as amended or replaced from time to time). The parties may by agreement rescind or vary this Agreement without the consent of a third party to whom the right of enforcement of any of the provisions of this Agreement has been expressly provided.
19.10 Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture or the relationship of employer and employee between the parties, nor appoint either party as the agent of the other party for any purpose.
19.11 It is the intention of the parties, and the parties believe, that the use and/or occupation by the Hirer of the Location or any other part of the Premises of Retail Therapy Media Ltd, as permitted under this Agreement, is under licence only and that no relationship of landlord and tenant shall be created by this Agreement. If, however, it is determined by a court of competent jurisdiction that a relationship of landlord and tenant is created by this Agreement, then the Hirer shall indemnify Retail Therapy Media Ltd against, and hold it harmless from, all direct or indirect damages, loss, costs, claims and expenses which Retail Therapy Media Ltd may suffer or incur (including consequential loss, loss of profit, loss of rent, loss of revenue, loss of reputation and all interest, penalties and legal and other professional costs and expenses) by reason of such determination.
20 Notices
20.1 Any notice, consent, request, demand, approval or other communication to be given under, or in connection with, this Agreement (a ‘Notice’) must be in English, in writing and signed by or on behalf of the party giving it. All Notices shall be delivered by hand or sent by pre-paid first class post or pre-paid international airmail to the Hirer at its registered office and to Retail Therapy Media Ltd at its registered office (or such other address as either party may notify to the other in accordance with this clause 21).
20.2 Notices delivered by hand shall be deemed served upon delivery, Notices sent by pre-paid first class post shall be deemed served on the second Business Day following the day of posting and Notices sent by pre-paid international airmail shall be deemed served on the fifth Business Day following the day of posting.
20.3 In proving such service, it shall be sufficient to prove that delivery by hand was made or that the envelope containing the Notice was properly addressed and delivered into the custody of the postal authorities as a pre-paid first class or prepaid international airmail letter (as the case may be).