TERMS AND CONDITIONS OF BUSINESS
The following terms and conditions shall apply in relation to the supply of any services or goods by Scruffy Dog Group Limited with company number 07386246, or any other Scruffy Dog Group Company (collectively or individually referred to as ‘Scruffy Dog’). They supersede all previous conditions and override any alternative conditions referred to by the Customer and constitute the entire agreement between Scruffy Dog and the Customer.
1. DEFINITIONS
1.1 Unless inconsistent with the context, in these terms and conditions:-
‘Customer’ means the person, firm or company using the Services of Scruffy Dog;
‘Customer’s Property’ means any of the Customer’s works, tapes, films or other materials, equipment or other property which is the subject of the Facilities and is provided to Scruffy Dog;
‘Facilities’ means the pre/post-production equipment, personnel, creative and production facilities and Services which Scruffy Dog is providing to the Customer in accordance with these terms and conditions;
‘Scruffy Dog Group Company’ means Scruffy Dog, any company which is a holding company or subsidiary of Scruffy Dog or a subsidiary of a holding company of Scruffy Dog, including Scruffy Dog Creative Ltd, Scruffy Dog Productions Ltd and Scruffy Dog Creative Middle East FZ-LLC;‘Services’ means those services or products which Scruffy Dog has agreed to provide to the Customer.
2. PRICES AND CHARGES
2.1 The prices and charges are those provided to the Customer from time to time by Scruffy Dog. Unless otherwise indicated, the rates quoted do not include Value Added Tax, expenses and disbursements. Any such VAT or expenses shall be paid by the Customer.
2.2 Prices provided (by way of a quotation or price list) are subject to change to the prices in effect at the time of delivery. Scruffy Dog reserves the right to make any corrections to prices quoted due to clerical errors or omissions.
2.3 Scruffy Dog reserves the right by giving notice to the Customer at any time before completion of the Services to increase the price of the Services and the final requirements to reflect any increase in the cost to Scruffy Dog which is due to any change in dates, quantities or specifications for the Services which are requested by the Customer or any delay caused by any instructions of the Customer or failure of the Customer to give Scruffy Dog adequate information or instructions, and Scruffy Dog reserves the right to levy an additional charge for labour-related costs should urgent jobs be required outside normal working hours.
2.4 The Customer shall be liable to reimburse Scruffy Dog for all reasonable expenses incurred during delivery, if these sums are in addition to the delivery sums quoted. 2.5 If not specifically quoted, and if it is necessary to accommodate any employee of Scruffy Dog in a hotel in order for Scruffy Dog to complete its obligations, the Customer shall be liable to pay the actual cost of the said hotel to Scruffy Dog.
3. ESTIMATES
3.1 Whilst the time and price estimates given by Scruffy Dog are given in good faith and Scruffy Dog will endeavour to adhere to such estimates, Scruffy Dog shall not be bound by such estimates where they are not met due to the Customer’s changes or other circumstances outside Scruffy Dog’s control and Scruffy Dog shall not be liable for any failure to meet such estimates. Scruffy Dog shall not be responsible for any costs, charges or expenses incurred by the Customer as a result of such failure.
4. PAYMENT
4.1 Except where these terms and conditions provide otherwise, and subject to paragraph (4.3) below, payment of all fees and charges incurred shall be made to Scruffy Dog within fourteen (14) days of the date of invoice or prior to the delivery of Services, whichever is earlier.
4.2 All sums payable by the Customer shall be paid without any deduction whatsoever, whether by way of set-off, counterclaim or otherwise and for the avoidance of doubt the Customer shall not be entitled to the benefit of any such deduction to which it might otherwise be entitled in law or in equity. Scruffy Dog shall be entitled in the event of non-payment in whole or in part to enforce any judgment obtained in relation thereto without any stay of execution pending the determination of any claim by the Customer against Scruffy Dog.
4.3 Scruffy Dog reserves the right to require payment of all fees and charges, in full or in part, in advance of the Services.
4.4 Any queries on the invoice must be raised within seven (7) days of the date of the invoice.
4.6 No title shall pass to the Customer and the Customer shall not be permitted to use any product or Service provided by Scruffy Dog in connection with any agreement until full payment has been made to Scruffy Dog or where express written permission is given to the Customer by Scruffy Dog.
4.7 Where the Customer is in possession of and has use of a product provided by Scruffy Dog and full payment for this product has not been made to Scruffy Dog, Scruffy Dog reserves the right to seize the product and the Customer will be responsible for all the associated costs of seizure, including but not limited to the reasonable legal costs of Scruffy Dog.
4.8 If the Customer fails to make any payment due to Scruffy Dog by the required due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time in addition to an administration fee of £750 per week. Such interest shall accrue on a daily basis from the due date until the actual payment of the overdue amount is made. The Customer shall pay the interest together with the overdue amount.
5. CANCELLATION OF CUSTOMER
5.1 In its absolute discretion, Scruffy Dog may at any time permit cancellation by the Customer of the Services and reserves the right to terminate any Services in the event of any breach of these terms and conditions by the Customer.
5.2 In the event of any such cancellation being instigated by the Customer and permitted by Scruffy Dog less than one full 24-hour working day before the start of the Services, the Services will be charged at Scruffy Dog’s full rates at the date of cancellation.
5.3 In the event of such cancellation being permitted by Scruffy Dog or instigated by the Customer between one and three full 24-hour working days before the start of the Services, the Services will be charged at 50% of Scruffy Dog’s full rates at the date of cancellation.
5.4 In addition to the above-mentioned cancellation charges, Scruffy Dog will be entitled to reimbursement of any costs or expenses which it may have incurred with the knowledge and approval of the Customer.
6. LIEN AND DELIVERY
6.1 Until payment in cash or cleared funds of all payments due from the Customer to Scruffy Dog in consideration of particular Services:-
6.1.1 the physical property shall, notwithstanding delivery, remain vested in Scruffy Dog; and
6.1.2 Scruffy Dog shall have a general lien over any property of the Customer in Scruffy Dog’s possession for such payments due.
6.2 Furthermore, such property shall not pass to the Customer until Scruffy Dog has also received payment in cash or cleared funds of all payments due from the Customer to Scruffy Dog under any other order or transaction.
6.4 If the Customer fails to make payment within seven (7) days of such payment amounts becoming due, Scruffy Dog at its discretion shall be entitled to exploit or dispose of such property and apply any proceeds towards the payments due and any expenses in respect of such exploitation or disposal and shall, upon accounting to the Customer for the balance (if any) remaining, be discharged from all liability in respect of any such property.
6.5 Scruffy Dog will endeavour to deliver any Services as soon as practicable after receipt of all sums due to Scruffy Dog from the Customer for those Services but Scruffy Dog shall not be responsible for any loss suffered by the Customer due to delay in delivery unless such loss shall have been caused by the gross negligence of Scruffy Dog.
7. INSURANCE
7.1 Risk of damage to or loss of any products shall pass to the Customer on delivery, or if the Customer fails to take delivery, when Scruffy Dog tenders delivery.
7.2 The customer acknowledges that it is not possible for Scruffy Dog to obtain insurance against any lost costs of production arising from loss or damage to the Customer’s property.
7.3 Accordingly, the customer shall take out and maintain such insurance cover against all risks as is necessary or usual in connection with production (including pre/post production), including lost production costs caused on loss or damage to the Customer’s property (and its content) whilst under the custody or control of Scruffy Dog.
8. INTELLECTUAL PROPERTY IN MATERIALS
8.1 All intellectual property in products, drawings, designs or other works resulting from the provision of Services and/or embodied in any products provided under any agreement with the Customer shall vest in, and be exclusive property of, Scruffy Dog unless otherwise agreed in writing between Scruffy Dog and the Customer.
8.2 The Customer warrants that it has obtained all consents, licenses, and clearances required from any person holding intellectual property rights (including, but not limited to, copyrights and trademarks) necessary for Scruffy Dog to perform the Services. The Customer shall indemnify Scruffy Dog, its directors, officers, and employees against any and all liability to third parties, including royalties, performance incomes, statutory and/or mechanical fees, defamation, infringement of copyrights, trademarks, or moral rights, as well as publicity, privacy, and personality rights, arising directly or indirectly from Scruffy Dog’s delivery of the Services and related activities
9. CONFIDENTIAL INFORMATION
9.1 The Customer shall take proper steps to keep confidential all confidential information relating to Scruffy Dog or its business or financial affairs or the Facilities or other services provided by it, including any computer programs, production techniques, databases and any original ideas and concepts, know-how, designs and processes incorporated in or inherent in any materials, which information is disclosed to or obtained by the Customer pursuant to or as a result of the provision of the Facilities and Services (other than information in the public domain other than by reason of a breach by the customer of this provision).
9.2 The Customer will not use or divulge any confidential information to any person (other than its professional advisers) and upon the termination of the Services, the Customer will return to Scruffy Dog any confidential information (without retaining copies thereof) and any equipment or other materials provided by Scruffy Dog.
10. SCRUFFY DOG’S LIABILITY
10.1 Save as otherwise expressly provided in these terms and conditions and to the fullest extent permitted by law:
10.1.1 The supply to any customer of product or designs are entirely at the Customer’s risk and Scruffy Dog shall be under no liability to the Customer or any other person for any direct, indirect or consequential loss or damage arising from any defect in the product and the materials or any equipment used in relation thereto;
10.1.2 If the use of the product is delayed, postponed, curtailed or cancelled for any reason affecting Scruffy Dog, then unless such delay, postponement, curtailment or cancellation has been caused by the gross negligence of Scruffy Dog, Scruffy Dog shall not be liable for any loss or damage suffered by the Customer by reason thereof;
10.1.3 Scruffy Dog shall not in any event be liable for economic loss (including loss of profit or goodwill) or any indirect or consequential loss or damage; and
10.1.4 All warranties, conditions, terms and representations relating to the Services supplied by Scruffy Dog (whether expressly or implied by statute, common law, use or otherwise) are hereby excluded.
Nothing herein shall be construed as excluding or limiting (or seeking to do so) any liability on the part of Scruffy Dog by reason of death or bodily injury caused by Scruffy Dog’s negligence.
10.2
10.2.1 Save as otherwise expressly provided in these terms and conditions and to the fullest extent permitted by law, Scruffy Dog will not be responsible for any damage to or loss of any Customer’s property held by Scruffy Dog nor any loss (consequential or otherwise) arising in respect thereof, unless caused by Scruffy Dog ‘s negligence in which case paragraphs (10.2.2) and (10.2.3) shall apply;
10.2.2 In the event of loss or damage to the Customer’s property caused by Scruffy Dog’s negligence during the Services Scruffy Dog’s liability shall be limited to the cost expended by the Customer in fees and charges charged by Scruffy Dog and shall not exceed £50,000 in respect of any one job.
10.2.3 Subject to the above provisions of this paragraph (10.2), all of the Customer’s property and all products held by Scruffy Dog will be held by Scruffy Dog entirely at the risk of the Customer, irrespective of the cause of any loss or damage and the Customer should insure the Customer’s property to its full value against all risks and take and retain copies of all Customer’s property before providing them to Scruffy Dog.
10.3 Scruffy Dog shall make available its equipment and the personnel it deems necessary to operate such equipment but the Customer shall satisfy itself that the products are suitable for its purpose and while Scruffy Dog will use its best endeavours to ensure that all equipment and products perform in accordance with the specification for such equipment and products, unless expressly agreed in writing at the time of the acceptance of the booking, Scruffy Dog shall not be responsible for ensuring that its equipment and the products provided by it are suitable for the Customer’s purpose.
10.4 Scruffy Dog shall not be liable for any reduction in the quality of its Services that may be caused by the quality of the Customer’s property or Scruffy Dog’s adherence to the Customer’s instructions.
10.5 The Customer shall indemnify Scruffy Dog, its directors, and employees, servants, sub-contractors and agents all liabilities, actions and losses, claim, proceedings, judgement, damages, obligations, costs and expenses of any nature what- so ever (including, but not limited to, legal fees, costs and expenses) arising directly or indirectly out of or in connection with the Customer’s property or the acts or omissions of the customer, its servants, agents or representatives, or any breach by the Customer of any of its representations, warranties or other obligations in these terms and conditions (including, but not limited to, claims by any third party for breach of copyright or defamation relating to any materials or the Customer’s property or any failure by the Customer to observe the provisions and requirements of any applicable agreements).
11. DISPOSAL
11.1 Scruffy Dog shall be entitled to destroy, erase or otherwise dispose of as it thinks fit any materials or the Customer’s property in its possession and uncollected by the Customer after the expiration of six months from the end of the Services, and while uncollected by the Customer, such materials or the Customer’s property shall be held by Scruffy Dog at the Customer’s risk as stated above.
12. TRANSFER OF OBLIGATIONS
12.1 Scruffy Dog reserves the right to assign or sub-contract all or any part of its obligations to the Customer.
12.2 Any contract which is made between Scruffy Dog and the Customer is personal to the Customer, who shall not assign or charge the benefit thereof without the express prior written consent of Scruffy Dog.
13. CREDITS
13.1 The Customer shall ensure that Scruffy Dog is given screen credits in respect of the Services and Facilities supplied by Scruffy Dog in a form approved in advance by Scruffy Dog. The Customer hereby grants Scruffy Dog the right to refer in its advertising or promotional material to the Customer and to use the material or the title of any project or any work completed by Scruffy Dog for the Customer in any such advertising or promotional material.
14. REPRESENTATIONS AND WARRANTIES
The Customer represents and warrants to Scruffy Dog that:-
14.1 Before the commencement of the Services it will obtain all consents licenses and clearances required from the performers, copyright owners and any other person having any right or interest in connection with any of the Customer’s property; and
14.2 Nothing contained in the Customer’s property will be defamatory, offensive, obscene or otherwise unlawful or in breach of any intellectual property or any other right of any third party.
15. FORCE MAJEURE
15.1 Scruffy Dog shall not be under any liability to the Customer as a result of Scruffy Dog being unable to perform any of its obligations or comply with any of the Customer’s instructions due to circumstances beyond its reasonable control, including but not limited to, industrial action taken by any person or persons, and if Scruffy Dog is so unable, it shall at its option either be entitled to perform such obligations or comply with such instructions as and when it is reasonably able to do so or to treat itself as wholly or partly released from all such obligations or instructions liability.
16. TERMINATION BY SCRUFFY DOG
16.1 Scruffy Dog shall, without prejudice to any other right or remedy which it may have, be entitled to terminate all of its obligations to the Customer upon the occurrence of any of the following events:-
16.1.1 If the Customer is at any time in breach of any obligation or representation or warranty to Scruffy Dog, or any sum owing to Scruffy Dog by the customer is overdue by more than seven (7) days; or
16.1.2 If the Customer makes or offers to make any compensation with creditors or enters into a voluntary arrangement or if a bankruptcy petition is served on the Customer or (if the Customer is a limited liability company) any resolution or petition to wind up the Customer’s business is presented or if a receiver or administrative receiver is appointed to deal with any part of the Customer’s assets.
16.2 Upon any such termination, the Customer will pay to Scruffy Dog on demand all sums owing in respect of Services already performed by Scruffy Dog, together with relating to instructions given by the Customer before termination, so as to fully indemnify Scruffy Dog in respect of all liabilities incurred in consequence of compliance with the Customer’s instructions.
17. GENERAL
17.1 All notices given in accordance with these terms and conditions shall be in writing and may be delivered personally, by email, or sent by pre-paid first-class post to the usual or last known address of Scruffy Dog or the Customer. A notice shall be deemed to have been properly served if personally delivered, at the time of delivery, if sent by email, on the same day of such sending, and if posted, forty-eight hours after posting. In providing service it shall be sufficient to show that the notice was delivered to the correct address or that the envelope containing the notice was properly addressed, pre-paid and posted.
17.2 No variation of these terms and conditions shall be effective unless made in writing and signed by a duly authorised director of Scruffy Dog and the Customer.
17.3 In the event that any of these terms, conditions or provisions or those of any schedule or attachment hereto will be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law and with whatever modification is necessary to give effect to the commercial intention of the parties.
17.4 Any failure or delay by Scruffy Dog in exercising or enforcing any rights conferred by these terms and conditions shall not be deemed to be a waiver thereof or operate so as to bar the exercise or enforcement of such rights at any time.
17.5 The contract between Scruffy Dog and the Customer shall be governed by and construed in accordance with English law and Scruffy Dog and the Customer agree for the exclusive benefit of Scruffy Dog that the English Courts shall have jurisdiction to settle any dispute relating thereto.