APPENDIX 1 – GENERAL TERMS
- Composition of the agreement
1.1 These general terms together with the project terms and any appendices to the project terms constitute the agreement between Chimney and the Customer (as defined in the project terms), which governs the Customer’s order of, and Chimney’s performance of, the services and delivery of the material set out in the project terms (the “Agreement”).
1.2 In the event of a conflict between these general terms and the project terms, the project terms shall prevail. Subsequently, deviations from these general terms may be agreed upon and set out in the project terms. Chimney and the Customer are also referred to below individually as “Part” or “Party” and jointly as “Parties”.
- The Assignment etc.
2.1 Chimney shall perform the services and deliver the material set out in the project terms and any additional appendices included in this Agreement such as project specification or other project documentation, on the dates and times set out in the project terms or appendices (the “Assignment”).
2.2 The Assignment is not exclusive, meaning that Chimney shall not be prevented from performing services for competitors of the Customer or from otherwise working with competing products or services (if not otherwise agreed in the project terms).
2.3 Chimney is entitled to engage freelancers/contractors or sub-contractors for the performance of the Assignment. Chimney is however fully responsible towards Customer for the fulfillment of this Agreement.
- Customer’s obligations in relation to the Assignment 3.1 The Customer undertakes to gradually and in good time, or in accordance with the agreed time plan, supply any agreement, material or approval necessary for the Assignment to be performed in the best way possible and in accordance with this Agreement. For these reasons, and in order for Chimney to maintain its good reputation, the Customer undertakes to ensure that all information provided to Chimney is accurate.
3.2 Any delayed delivery by Chimney which is caused by Customer being in breach of section 3.1 above or which is otherwise caused by the
Customer shall not constitute a breach by Chimney of its delivery obligations under this Agreement.
- Rights 4.1 The Customer hereby grants Chimney the right to during the term of the Agreement, only for the purpose of performing the Assignment, use the material which Customer supplies Chimney with in connection with the Assignment (such as texts, images or logotypes which are supplied for inclusion in campaign material or photographed or filmed material which is supplied to Chimney for editing, cutting etc.) (the “Customer Material”).
4.2 Provided that the remuneration set out in this Agreement has been fully paid, the Customer in relation to Chimney acquires, subject to section 4.3, all intellectual property rights in and to the results of the Assignment, such as delivered material (”Assignment Results”). For the avoidance of doubt, the assignment of rights under this section does not include the Customer Material. The Customer’s rights acquisition under this section entails that the Customer, in relation to Chimney, has the right to make copies of the Assignment Results and to make the Assignment Results available to the public in all territories, through all media and methods existing now or in the future during the full period of rights protection (including any renewals or extensions).
4.3 Should the Assignment only include post production services, the Customer is entitled to freely adapt the Assignment Results. For all other Assignments (including Assignments which include several types of services, post production services being one of them) the following shall apply: The Customer is entitled to adapt the Assignment Results by cutting, editing or otherwise producing alternative versions of the Assignment Results subject to the Customer having obtained any necessary permissions from external rights holders, and such editing not being in breach of any moral rights. For the avoidance of doubt this means that the Customer is not entitled to use all or parts of the Assignment Results (such as material which overall has a different script//story/message than the Assignment Results) or to otherwise separately use elements from the Assignment Results such as photographs/stills, illustrations or music.
4.4 The Customer’s rights acquisition under section 4.2 does not apply in relation to external rights holders (if any) to the Assignment Results, such as actors, speakers, record companies/music
publishers, image agencies, rights holders to archive material, props etc. In relation to such rights holders, the Customer acquires the right to use the Assignment Results as set out in the project terms.
4.5 The Customer is entitled to grant (license) or transfer the rights acquired under this Agreement to third parties. Such grant or transfer shall however not affect the Customer’s obligations towards Chimney under this Agreement.
4.5 Upon Customer having made the Assignment Results available to the public (e.g. by publishing a production/campaign where the Assignment Results are included) Chimney is, notwithstanding the Customer’s rights acquisition under section 4.2, entitled use the Assignment Results for the purpose of marketing Chimney and to use the Customer’s company name/logotype in its marketing by referring to Chimney having provided services for the Customer. Chimney is entitled to grant such right to freelancers/sub-contractors engaged by Chimney for the performance of the Assignment.
- Physical ownership and archiving
Subject to full payment of the remuneration set out in this Agreement, the Customer acquires the physical ownership to all material delivered by Chimney under the Assignment. The responsibility to archive the material is transferred to the Customer upon delivery of such material.
- Clearance of rights and liability for the content of the Assignment Results
6.1 Chimney shall from its own staff (which for the avoidance of doubt includes not only employees but also freelancers/contractors engaged by Chimney as a part of Chimney’s work force for the performance of the Assignment) obtain all necessary consents/clear all rights necessary for assignment of rights under section 4.2.
6.2 Chimney shall from external rights holders obtain all necessary consents/clear all rights necessary for the Customer to use the Assignment Results as set out in section 4.4 and in the project terms. Chimney’s responsibility under this section applies to such content/participants as laid out in the project specification, brief, storyboard/synopsis or other project documentation included in this Agreement or which has otherwise prior to the
execution of this Agreement been instructed by the Customer for inclusion in the Assignment Results and for which the clearance cost (payment to the rights holder for the use and payment to Chimney for clearance work) has subsequently been included in the budget.
6.3 With respect to other parts of the Assignment Results’ content than such set out in section 6.2 above, Chimney shall inform the Customer of such content, where after the Customer shall notify Chimney whether (i) the Customer shall be responsible for acquiring (and paying for) necessary permissions or (ii) if Chimney shall obtain such permission (in such case the Customer shall bear the cost of payments to rights holders and pay market oriented remuneration to Chimney for the service of clearing such rights). In the absence of any feedback from the Agency, the Agency is responsible for obtaining necessary permissions.
6.4 Notwithstanding the above, the Customer is always (in relation to Chimney) the Party responsible for obtaining permission and paying remuneration to relevant collecting societies such as STIM for the communication of the Assignment Results to the public. The Customer is also between the Party responsible of ensuring that any necessary permissions are obtained with respect to the Customer’s/end customers trademarks, company names or other marks/features related to the Customer/end customer or other Customer Material which has been instructed or supplied for inclusion in the material to be produced by Chimney under the Assignment.
6.5 The Customer is responsible to ensure that the content of the Customer Material, the Assignment Results and the production/campaign in which these are included, complies with any and all laws and regulations, ethical rules and market practice applicable in the territory where the Assignment Result is made available to the public.
7.1 The Customer shall for Chimney’s performance of the Assignment and the grant/assignment of rights under this Agreement pay Chimney the remuneration set out in the project terms. The remuneration consists of Chimney’s fee for the
Assignment and the transfer of Chimney’s rights, and of budgeted costs according to the approved budget. Any VAT or potential advertising tax or other taxes are not included in the remuneration.
7.2 The remuneration is based on the information, conditions, guidelines and delivery requirements which have been supplied by the Customer or which appears from this Agreement. Any changes to the Assignment and/or extended order requires a separate agreement and will be subject to additional invoicing.
7.3 The remuneration under section 7.1 does not include any additional costs caused by the Customer’s breach of agreed time schedules or delivery of insufficient material for the Assignment, i.e. that the Customer does not comply with section 3, or by the Customer’s request of changes to previously approved material – such costs will be subject to additional invoicing.
7.4 In case of delayed payment, an interest on overdue payment of 12% per month shall be added to the outstanding amount.
7.5 The payment shall be made in accordance with the payment plan set out in the project terms, or as separately agreed between the Parties. Chimney’s purchase of media space or similar will be invoiced to the Customer in advance.
- Faults, complaints and corrections
8.1 Chimney is responsible to review proof, originals etc. to avoid any inaccuracies and to not order final print or corresponding production stage for use in media such as TV, film, video prior to the Customer having notified Chimney of its final approval.
8.2 The service provided, or material delivered is faulty should the service/material not correspond with this Agreement, i.e. the project terms and any appendices or with any later in writing agreed changes and this is caused by Chimney. The Customer is however responsible to, when applicable, approve proof, originals etc. which Chimney delivers to the Customer and the Customer is responsible for any inaccuracies in regard to spelling, actual content and other inaccuracies which the Customer should have noticed when performing such review.
8.3 If the delivered material has been approved by the Customer in writing upon or after delivery, or if the Customer has not notified Chimney of any objections to the delivered material within seven (7)
work days from receipt or if the material is made available by the Customer to the public, the material shall always be deemed approved by the Customer and the Customer has thereby lost the right to direct any claims towards Chimney based on faulty material.
8.4 For production of commercials (advertising films) the following shall specifically apply instead of what is set out in section 8.3.
(i) the Customer does not notify Chimney of any objections at the so- called on-line presentation, or; (ii) the Customer has not notified Chimney of any objections regarding the technical features of the commercial within a period of seven (7) business days from the date of the Customer receiving a copy of the commercial, or; (iii) the commercial is made available to the public by the Customer,
the commercial shall always be deemed approved by the Customer, meaning that the Customer has lost the right to direct any claims towards Chimney based on faulty material. Any claims based on faults related to the cutting cannot be presented after the Customer has approved the so-called offline version.
8.5 If the Customer however has presented any objections within the periods stated in section 8.3 or 8.4, Chimney shall without unreasonable delay and without additional charge take reasonable measures to rectify such faults which Chimney is responsible for. Should Chimney not have rectified such faults with the speed required under the circumstances the Customer may provide Chimney with a final and reasonable time limit for rectification. If the fault is not rectified upon expiration of such time limit, or if rectification is not possible, the Customer is entitled to a price reduction, and if the fault is a material breach the Customer is entitled to rescind the Agreement as set out in section 9.2 (i).
8.6 Notwithstanding that which is set out above in this section 8, for post production services the remuneration under section 7.1 includes a right for the Customer to freely request changes in accordance with what is set out in the project terms or any appendices regarding correction rounds/correction hours.
9.Term, termination and liability
9.1 This Agreement is effective from the date of both Parties’ signature of the Agreement until the Assignment is fully performed and approved (the term), unless the Agreement is terminated in advance as set out in section 9.2.
9.2 Each Party is entitled to rescind the Agreement if:
(i) the other Party is in material breach of its obligations under this Agreement and does not remedy (if capable of remedy) such breach within seven (7) business days from a written note specifying such breach, or
(ii) the other Party goes into liquidation, goes bankrupt or for other reasons can be assumed to be insolvent.
9.3 A Party in breach of this Agreement shall reimburse the other Party for any and all direct damages caused by such breach. Chimney’s liability under this Agreement shall however be limited to an amount corresponding to the part of the remuneration set out in section 7.2 which constitutes remuneration to Chimney for the performance of the Assignment and transfer of Chimney’s rights to the Assignment Results. In order for any right to damages to apply, a claim for damages shall be presented by the Customer within three (3) months from a judgment having gained legal force or from a settlement agreement being reached with a third party.
9.4 If the Customer cancels the Assignment, other than trough rescindment under section 9.2, including if the Customer wants to postpone the Assignment, full remuneration under section 7 shall – notwithstanding section 9.3 – be paid to Chimney, i.e. full remuneration to Chimney and remuneration for all other budgeted costs which cannot be avoided (i.e. costs which are due for payment or which are not yet due for payment but for which Chimney has a binding obligation to pay). Chimney shall use reasonable efforts to limit the Customer’s cost in case of cancellation or postponement of the Assignment.
- Force majeure
Each Party shall be relieved from liability for a failure to perform any obligation under this Agreement to the extent that the due performance thereof was prevented by reason of any circumstance beyond the control of the breaching Party and which the breaching Party could not reasonably be expected to have foreseen or taken
into account at the time of entering into this Agreement and the consequences of which the breaching Party could not reasonably have avoided or overcome
11.1 The Parties agree to keep confidential the content of this Agreement and any and all information (both oral and written) regarding the other Party’s business activities (including information about the other Party’s customers) obtained in connection with this Agreement which the disclosing Party reasonably wants to avoid disclosure of. The Parties subsequently undertake not to disclose such information to any third party. As regards content of the production/campaign, the confidentially undertaking applies up until such production/campaign has been made available to the public.
11.2 Notwithstanding section 11.1 above the Customer shall be entitled to supply end customers (such as the commissioner of advertising material or film/TV program), and any distributors or financiers of the content/production which includes the Assignment Results, with a copy of the Agreement and Chimney shall have the right to announce the existence of the Assignment for PR and marketing purposes.
11.3 This section shall continue to apply even after the termination of this Agreement.
12.1 The Customer shall take out and maintain insurance as necessary and customary for its operations, such as general liability insurance.
12.2 Chimney shall take out and maintain insurance as necessary and customary for its operations and the performance of the Assignment, such as production insurance when applicable.
12.3 Any weather insurance shall be taken out and paid for by the Customer. The Customer is thereby economically liable towards Chimney for Chimney’s internal and external costs relating to the postponement or cancellation of the shoot due to inappropriate weather for shooting. Decisions regarding postponement/cancellation for such reason shall be taken by the Parties in joint consultation.
13.1 This Agreement constitutes the entire agreement between the Parties in relation to its subject matter and replaces and extinguishes any and all prior agreements, undertakings and representations made by the Parties in relation to such subject matter.
13.2 Amendments and supplements to this Agreement shall be made in writing and signed by both Parties in order to be valid. Changes of ongoing matters relating to the Assignment, such as changes in the time schedule/production plan or minor budget adjustments may however be executed on the basis of an e-mail confirmation between the Parties’ appointed contact persons.
13.3 This Agreement shall be governed by Swedish law. Any disputes arising out of or in connection with this Agreement shall be settled by the courts of Sweden, with the District Court of Stockholm being the court of first instance.