1.1. The definitions and rules of interpretation in this clause apply in this agreement:
“Confidential Information” means information disclosed by (or on behalf of) one party to the other party in connection with or in anticipation of this agreement that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third party.
“Customer” means the person or organisation buying Services from RATCHET as mutually agreed between the parties in writing (including email).
“Deliverables” means all Documents, products and materials developed by RATCHET or its agents, subcontractors, consultants and employees (excluding the Pre-existing Material) in relation to the Services in any form.
“Document” includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
“RATCHET’s Equipment” means (if any) any equipment, including tools, systems, cabling or facilities, provided by RATCHET or its subcontractors and used directly or indirectly in the supply of the Services.
“In-put Material” means all Documents, information and materials provided by the Customer relating to the Services.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Pre-existing Materials” means all Documents, information and materials provided by RATCHET relating to the Services which existed prior to the commencement of this agreement (including computer programs, data, reports, specifications, ideas) and all Documents, information and materials which are deemed by RATCHET to be generally applicable Documents, information and materials not bespokely created for the Customer and used by RATCHET when providing services to its customers.
“Project” means a project as described in a Project Plan.
“Project Milestones” means (if any) a date by which a part of a Project is estimated to be completed, as set out in a Project Plan.
“Project Plan” means a plan (including email plan) provided by RATCHET and agreed in accordance with clause 3 which: (i) describes a Project including the charges payable by the Customer; (ii) may set out the estimated timetable (including Project Milestones) and the responsibilities for the provision of the Services; (iii) is agreed by both parties in writing (including email and quotes); and (iv) incorporates this agreement.
“RATCHET” means Ratchet Limited, a company registered with Companies House in England and Wales under number 08918660 with its registered office at CHASDAN, Castle House, Castle Street, Guildford, Surrey, GU1 3UW.
“Services” means the services to be provided by RATCHET under this agreement as set out in a written Project Plan.
“VAT” means value added tax chargeable under English law for the time being and any similar additional tax.
1.2. Where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.3. Any obligation in this agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. COMMENCEMENT AND DURATION
2.1. RATCHET shall provide the Services to the Customer on the terms and conditions of this agreement from a date to be mutually agreed between the parties in writing (including email).
2.2. Unless otherwise terminated in accordance with this agreement, this agreement shall remain in full force and effect until the Services have been delivered by RATCHET to Customer as determined by RATCHET.
3. PROJECT PLAN
3.1. RATCHET and Customer will agree in writing (including email and quotes) the terms of a Project Plan setting out the Services which RATCHET will provide (including a description of what work is to be done, estimated dates by which the work will start and finish, details of the Deliverables and In-put Materials (if any) and charges payable by the Customer for the Services). For the avoidance of doubt, this agreement is deemed acceptable to the Customer upon mutual agreement of a Project Plan or instruction to proceed given by any means by the Customer. Customer is responsible for ensuring that it has thoroughly read and understood the Project Plan.
3.2. Once the Project Plan has been agreed, no amendment shall be made to it except in accordance with this agreement.
4. RATCHET’S OBLIGATIONS
4.1. RATCHET shall use reasonable endeavours to provide the Services and to deliver the Deliverables to the Customer, in accordance with an applicable Project Plan in all material respects.
4.2. RATCHET shall use reasonable endeavours to comply with all of the Customer’s reasonable and applicable policies notified by the Customer to RATCHET in writing.
4.3. RATCHET shall use reasonable endeavours to meet any performance dates or Project Milestones in a Project Plan, but any such dates shall be estimates only and time for performance by RATCHET shall not be of the essence of this agreement.
5. CUSTOMER’S OBLIGATIONS
5.1. The Customer shall:
(a) co-operate with RATCHET in all matters relating to the Services and appoint a customer manager in relation to the Services, who shall have the authority to contractually bind the Customer on matters relating to the Services;
(b) provide, for RATCHET, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the right stakeholders within Customer’s organisation who shall have the authority to provide feedback, make decisions and sign-off on matters in a timely manner so as to enable RATCHET to comply with its obligations under this agreement;
(c) arrange and manage clear access for video and sound capture. If filming venues are being organised by the Customer, it is the Customer’s responsibility to ensure that RATCHET has clear access to all relevant locations required throughout the day. Customer is solely responsible for delays in production and/or any additional charges or costs incurred as a result of inadequate access or facilities;
(d) comply with all reasonable instructions notified by RATCHET to Customer from time to time relating to the Services and provide, in a timely manner, such In-put Material and other information as RATCHET may reasonably require, as well as ensure that it is accurate in all material respects;
(e) (i) obtain all necessary permissions including to performances, branding, trade-marked goods, services and logos, use of Intellectual Property Rights, imagery, sound recordings and any other Documents protected by Intellectual Property Rights which will form part of the final Deliverables provided by RATCHET to the Customer; and (ii) ensure that it obtains all the necessary rights and licenses before providing Documents protected by Intellectual Property Rights to RATCHET for incorporation by RATCHET into a RATCHET Deliverable. The Customer shall fully indemnify RATCHET for any losses, costs or damages RATCHET may suffer as a result of a breach of this clause 5.1 (d) by the Customer.
5.2. If RATCHET’s performance of its obligations under this agreement and any Project Plan is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, RATCHET shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay. In addition: (a) RATCHET takes health & safety matters seriously and reserves the right in all instances to remove any of its personnel and / or equipment from a location if RATCHET deems it to be unsafe. In such circumstances the Customer will be fully liable for any costs incurred or subsequently arising as a result; and (b) in the event of inclement weather which in RATCHET’s opinion (acting reasonably) would pose a risk to the health & safety of RATCHET’s personnel or equipment or has the potential to prevent successful video or audio capture, RATCHET reserves the right to change the date or time of filming to a more suitable date or time.
5.3. Written or oral approval by the Customer’s approved personnel of drafts or proofs will be taken by RATCHET as authorisation to proceed to publication, and such approval (if any) will be taken as authorisation to enter into contracts with suppliers on the basis of estimates previously submitted by RATCHET. RATCHET will use reasonable endeavors to comply with any requests from the Customer to amend, halt, reject or cancel work in preparation, insofar as this is possible within the terms of its contractual obligations to suppliers. Amendments or cancellations will be implemented by RATCHET only on the understanding that the Customer will be responsible for any costs or expenses incurred prior to, or as a result of, the cancellation or amendment and which cannot be recovered after reasonable efforts by RATCHET.
5.4. Subject to prior written approval, the Customer shall allow RATCHET to add the Customer (including Customer’s logo) as a reference on RATCHET’s website located at https://weareratchet.com/ and in such other media as the parties may agree. The Customer agrees to act as a reference for prospective customers of RATCHET and provide input and data sufficient for the production of one publicly accessible case study (if requested by RATCHET).
6. CHANGE CONTROL
6.1. The parties shall meet (in person or virtually) at such intervals as mutually agreed between the parties to discuss matters relating to the Services. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
6.2. If either party requests a change to the scope or execution of the Services, RATCHET shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any necessary variations to RATCHET’s or third party charges arising from the change;
(c) the likely effect of the change on a Project Plan; and
(d) any other impact of the change on this agreement.
6.3. If the Customer wishes RATCHET to proceed with the change, RATCHET has no obligation to do so unless and until the parties have agreed the necessary variations to RATCHET’s (including third party) charges, the Services, the relevant Project Plan and any other relevant terms of this agreement to take account of the change and this agreement and the relevant Project plan has been varied in accordance with this agreement. For the avoidance of doubt: (a) in the case of video production any amendments or additional days filming will be charged at RATCHET’s current daily rates; (b) Customer is fully responsible for all costs and expenses incurred by RATCHET prior to the change request.
7. CHARGES AND PAYMENT
7.1. In consideration of the provision of the Services by RATCHET, the Customer shall pay the charges as set out in a Project Plan, which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both. Clause 7.2 shall apply if RATCHET provides Services on a time and materials basis and clause 7.3 shall apply if RATCHET provides Services for a fixed price. The remainder of this clause 7 shall apply in either case.
7.2. Where Services are provided on a time and materials basis:
(a) the charges payable for the Services shall be calculated in accordance with RATCHET’s standard daily fee rates;
(b) RATCHET’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between 9.00 am and 6.00 pm on weekdays (excluding public holidays);
(c) all charges quoted to the Customer shall be exclusive of VAT, which RATCHET shall add to its invoices at the appropriate rate; and
(d) RATCHET shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 7.2 and clause 7.4.
7.3. Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in a Project Plan (as applicable). The Customer shall pay the total price to RATCHET (without deduction or set-off) in the manner set out in a Project Plan or on RATCHET achieving the corresponding Project Milestone (as applicable).
7.4. Any fixed price contained in a Project Plan excludes VAT, which RATCHET shall add to its invoices at the appropriate rate.
7.5. The Customer shall pay each invoice submitted to it by RATCHET, in full and in cleared funds, within 30 days of receipt to a bank account nominated in writing by RATCHET.
7.6. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay RATCHET on the due date, RATCHET may:
(a) claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the Customer shall pay the interest immediately on demand; and
(b) suspend all Services until payment has been made in full.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. On payment by the Customer of all charges in accordance with this agreement and/or the applicable Project Plan, all Intellectual Property Rights in the Deliverables will be assigned to the Customer, unless other arrangements are made. RATCHET, shall execute any assignment necessary or requested by the Customer to effect such assignment of Intellectual Property Rights in the Deliverables to the Customer.
8.2. As between the Customer and RATCHET, all Intellectual Property Rights and all other rights in the Pre-existing Materials shall be owned by RATCHET. Subject to clause 8.3, RATCHET licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services.
8.3. The Customer acknowledges that, where RATCHET does not own a part or all of the Pre-existing Materials or Deliverables, the Customer’s use of rights in such Pre-existing Materials Deliverables is conditional on RATCHET obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle RATCHET to license such rights to the Customer.
8.4. The Customer allows RATCHET to display the Deliverables on RATCHET’s websites, applications, brochures and other marketing materials. The Customer acknowledges and agrees that RATCHET reserves the rights to use any footage and related files from any Customer-commissioned project for RATCHET’s promotional purposes.
The recipient of any Confidential Information will not disclose that Confidential Information, except to employees and/or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep such information confidential. The recipient will ensure that those people and entities: (a) use such Confidential Information only to exercise rights and fulfil obligations under this agreement, and (b) keep such Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, such notice to be sufficient to give the discloser the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
10. LIMITATION OF LIABILITY
10.1. This clause 10 sets out the entire financial liability of either party (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the other in respect of:
(a) any breach of this agreement (including a Project Plan) however arising;
(b) any use made by the Customer of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
10.2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement and all Project Plans.
10.3. Nothing in this agreement limits or excludes the liability of either party:
(a) for death or personal injury resulting from its negligence; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982; or
(d) the indemnity in clause 5.1 (d) of this agreement.
10.4. Subject to clause 10.2 and clause 10.3:
(a) Neither party shall under any circumstances whatsoever be liable for: (i) loss of profits; or (ii) loss of business; or (iii) depletion of goodwill and/or similar losses; or (iv) loss of anticipated savings; or (v) loss of contract; or (vi) loss of corruption of data or information; or (vii) for any special, indirect, consequential, losses, costs, damages, charges or expenses.
(b) Either party’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this agreement or any applicable Project Plan shall be limited to 100% of the total amount paid and payable by Customer under the applicable Project Plan.
11. DATA PROTECTION
The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency.
12.1. Without prejudice to any other rights or remedies which the parties may have, either party may suspend or terminate this agreement and/or a Project Plan without liability to the other immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under this agreement or any Project Plan on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of this agreement or a Project Plan and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or
(d) any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
12.2. On termination of this agreement or a Project Plan by the Customer, Customer shall in accordance with the terms set out in clause 7 pay RATCHET all of RATCHET’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, RATCHET may submit an invoice, which shall be payable within 30 days of receipt.
12.3. On termination of this agreement or Project Plan by either party:
(a) the Customer shall if requested by RATCHET, within a reasonable time, return all of RATCHET’s Equipment and Pre-existing Materials.
(b) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
13.1. Neither party will be liable for any delay or non-performance of its obligations under this agreement or any Project Plan to the extent that such delay or non-performance is a result of any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
13.2. No variation of this agreement or any Project Plan shall be valid unless it is in writing and signed by or on behalf of each of the parties.
13.3. Failure or delay in exercising any right or remedy under this agreement or any Project Plan shall not constitute a waiver of such (or any other) right or remedy.
13.4. If any provision of this agreement or Project Plan (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the agreement or Project Plan as applicable, and the validity and enforceability of the other provisions of the Agreement or Project Plan as applicable shall not be affected.
13.5. This agreement and the applicable Project Plan constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement and the applicable Project Plan. In entering into this agreement or any Project Plan neither party has relied on any statement, representation or warranty not expressly set out in this agreement or any Project Plan.
13.6. Except as expressly stated otherwise, nothing in this agreement or any Project Plan shall create or confer any rights or other benefits in favour of any person other than the parties to this agreement and Project Plan.
13.7. Except as expressly stated otherwise, nothing in this agreement or any Project Plan shall create an agency, partnership or joint venture of any kind between the parties.
13.8. Neither party may assign any of its rights or obligations under this agreement or any Project Plan without the prior written consent of the other such consent not to be unreasonably withheld.
13.9. All notices must be in English, in writing, addressed to the other party’s primary contact and sent to their then current postal address or email address or other address as either party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).
13.10. This agreement and all disputes and claims arising out of or in connection with it are governed by English law. With the sole exception of any application for injunctive relief, the parties irrevocably submit to the exclusive jurisdiction of the English courts.