UK COMMERCIAL TERMS & CONDITIONS

COPA90 General Terms for content production, branding and distribution

INTRODUCTION:

(1) COPA90 is a producer of football related video and other content. The Client has engaged COPA90 to create or brand certain content and otherwise provide a range of services and deliverables as more particularly described in the related Statement of Work.

(2) These General Terms along with the associated Statement of Work form an Agreement between: COPA90 Ltd (company number 05851891) whose registered office is at 6th Floor, One London Wall, London, EC2Y 5EB and whose trading address is Exmouth House, 3-11 Pine Street, London, EC1R 0JH (“COPA90”);  and the legal entity identified on the Statement of Work (the “Client”).

  1. Definitions & Interpretation
    1. The following terms shall have the corresponding meanings for the purposes of this Agreement:
      1. Advertising and Content Regulation” means any present or future applicable laws, codes, code of practice, guidance or adjudication of the Committee of Advertising Practice, Broadcast Committee of Advertising Practice, the Advertising Standards Authority, Ofcom or other delegated authority, together with other UK laws, statutes and regulations which are directly applicable to the Services;
      2. “Affiliates” means any company, partnership or other entity which at any time directly or indirectly controls, is controlled by or is under common control with either party including as a subsidiary, parent or holding company; .
      3. Agreement” means the Statement of Work  and these General Terms  together with all the recitals, clauses, schedules, annexes and all other documents referred to herein;
      4. “Business Day“ means any day other than: a Saturday, Sunday or public holiday in the UK; or any day between 24 December in any year and 1 January in the immediately following year (inclusive);
      5. “Client Dependencies” means the Client Materials, Client Talent, Client Locations or other obligations or commitments of the Client, including as may be specified in the Statement of Work;
      6. “Client Locations” means any locations, venues other places to which access is provided or made available to COPA90 by or on behalf of the Client;
      7. “Client Materials” means any Materials, Intellectual Property Rights and any other materials or information, formats, concepts or ideas which are provided to COPA90 and/or its Representatives by or on behalf of the Client;
      8. “Client Talent” means any talent, players, staff or other persons who are provided or made available to COPA90 by or on behalf of the Client;
      9. “COPA90 Proprietary Materials” means formats, brands, concepts, ideas, methodology, know-how, processes and Materials, included as adapted or versioned during a Project, in relation to which the Intellectual Property Rights are owned by (or licensed to) COPA90 and which are:
        1. in existence prior to the date on which it is intended to use them for a Project;  or
        2. created by or for COPA90 outside of a Project and which are intended to be reused across its business;
        3. or are otherwise agreed to be owned by COPA90;
      10. “Data Protection Legislation” has the meaning set out in Schedule 1 (Data Processing Agreement);
      11. “Deliverables” means the creative and other materials which constitute the finished production to be created by COPA90 as specified in a Statement of Work, which may include Third Party Materials and COPA90 Proprietary Materials where applicable;
      12. Distribution Channels” means the agreed channels (including social media and other websites) via which the Deliverables will be made available to the public as set out in the Statement of Work;
      13. “Effective Date” means the effective date of the relevant Statement of Work;
      14. “Expenses” means reasonable travelling, hotel, subsistence and other expenses incurred by COPA90 in connection with the supply of Services and Deliverables, that have not already been budgeted for in the Fees, provided that such additional Expenses have either received the Client’s prior written approval or where applicable are in accordance with any expenses policies which have been supplied to COPA90;
      15. “Fees” means COPA90 fees for a Project and/or the relevant Services, including any other identified costs, as set out in the applicable Statement of Work or otherwise agreed in writing;
      16. “Intellectual Property Rights” means the following rights, wherever in the world enforceable, including all reversions and renewals and all applications for registration: any patents or patent applications; any trade marks (whether or not registered); inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration; copyright or design rights (whether registered or unregistered); database rights; performer's property rights as described in Part II, Chapter X of the Copyright Designs and Patents Act 1988 and any similar rights of performers anywhere in the world; any goodwill in any trade or service name, trading style or get-up; and any and all other intellectual or proprietary rights;
      17. Licence Term” means the agreed licence period for which any licenced Deliverables may be made available by the Client as set out in the Statement of Work;
      18. Losses” means losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses (including reasonable legal and other professional expenses);
      19. Materials” means any artwork, copy,  designs, photographs, brands, logos, video, character, music, voice over, sound recording, performance,  logo, or any other material protected by Intellectual Property Rights;
      20. “Moral Rights” means all rights described in Part I, Chapter IV of the Copyright Designs and Patents act 1988 and any similar rights of authors anywhere in the world;
      21. “Project” means any project agreed between the parties under which COPA90 is to perform Services and create Deliverables for the Client, as more fully described in the applicable Statement of Work;
      22. “Project Timetable” means the timetable for various obligations of the parties as set out in the Statement of Work;
      23. “Representatives” means a party’s employees, officers, agents, sub-contractors or authorised representatives;
      24. “Statement of Work” or “SoW” means the COPA90 Statement of Work as agreed and signed by the parties containing a description and details of the relevant Project;
      25. “Services” means the Services to be supplied by COPA90 under this Agreement as set out in the relevant Statement of Work, which includes the provision of Deliverables;
      26. “Special Terms” means any terms specifically designated as varying these General Terms or the terms of any schedule, as set out in the applicable Statement of Work;
      27. “Term” means the period commencing on the Effective Date and ending on the later of the effective date of termination of this Agreement in accordance with the termination provision herein or the termination or expiry of the Licence Term;
      28. “Territory” means the  territory for approved usage of the Deliverables as set out in the applicable Statement of Work.  Publication on globally accessible mediums such as the internet shall be directed and promoted towards the Territory only, but need not be geo-restricted;
      29. “Third Party Materials” means those Materials which are licensed by COPA90 from third parties and incorporated into the Deliverables
    2. In this Agreement, references to clauses, schedules and appendices are to clauses of and schedules to and appendices to this Agreement. Where any provision contained in the schedules or a Statement of Work conflicts with any provision of the General Terms the following order of precedence shall apply: Statement of Work ; schedules; General Terms.
    3. Unless the context otherwise requires: a person includes a legal person (such as a limited company) as well as a natural person; the words “include” and “including” shall be construed without limitation; and any reference to an enactment of legislation includes any subordinate legislation made from time to time under it and is to be construed as references to that enactment as from time to time amended or modified or any enactment replacing it.
    4. The headings in this Agreement are for ease of reference only and shall be disregarded in construing or interpreting the Agreement.
  2. Appointment & Statement of Work
    1. Subject to signing of a relevant Statement of Work, and receipt of the Fees,  COPA90 shall perform the Services and (where relevant) shall create the Deliverables for use in in accordance with the agreed Statement of Work and these General Terms. 
    2. Once a Statement of Work has been signed by both parties, such Statement of Work shall automatically form part of this Agreement. 
    3. COPA90 will not be obliged to perform any work on behalf of the Client until the Statement of Work has been signed by both parties. 
  3. Term
    1. This Agreement shall commence on the Effective Date of the Statement of Work and shall continue until terminated in accordance with clause 19. 
  4. Client’s Obligations
    1. The Statement of Work will set out full details of the Services and Deliverables to be provided.  Notwithstanding this, the Client will give COPA90 clear briefings and ensure that all the facts given are accurate and shall ensure that it, its Representatives and its other suppliers and agencies act in willing co-operation with, and provide reasonable assistance to COPA90.     
    2. The Client will supply to COPA90 all Client Materials required by COPA90 or otherwise necessary to provide the Services and Deliverables.  Client is responsible for ensuring that it has all rights and licences in place to enable use by COPA90 of all Client Materials in accordance with this Agreement. Clearance and other costs may be specified in the Statement of Work as budgeted for in the Fees, but will otherwise be at the Client’s cost.
    3. The Client will supply COPA90 with access to all Client Talent and Client Locations required by COPA90 or otherwise necessary to provide the Services and Deliverables.  Client is responsible for ensuring that it has all rights and permissions in place to enable use by COPA90 of all Client Talent and Client Locations in accordance with this Agreement. Client is responsible for ensuring Client Talent and Client Locations are available and present/accessible at/on the required production days and locations. Clearance and other costs may be specified in the Statement of Work as budgeted for in the Fees, but will otherwise be at the Client’s cost.
    4. Unless otherwise agreed between the Client and COPA90 in writing, the Client shall be responsible for sourcing any promotional gift or prize being offered to the public or entrants to a promotion (“Promotional Prize”).  As such, the Client shall be liable for, and hereby indemnifies COPA90 against any and all Losses incurred as a result of any such Promotional Prize, including any claim by a third party arising out of the use or enjoyment of such Promotional Prize.
    5. The Client will comply with the timescales set out for it in the Project Timetable, and notwithstanding the rest of clause 4, will be responsible for the Client Dependencies.
    6. If the Client does not fulfil its obligations under or in connection with this Agreement (including its payment obligations), then to the extent that such delay or failure prevents COPA90 from performing any Services and/or providing any Deliverables in accordance with this Agreement, COPA90 will be relieved of its obligations to the Client, and COPA90 shall not be liable for any Losses incurred by the Client as a result of any such delay or failure.  Any costs or expenses suffered by COPA90 due to such delay or failure will be charged by COPA90 to the Client in addition to the Fees.
  5. COPA90 Obligations
    1. COPA90 shall:
      1. apply such time, attention, and reasonable skill and care as may be necessary or appropriate for its proper performance of the Services and provision of the Deliverables;
      2. comply with all lawful and reasonable directions regarding the Services and Deliverables communicated to it from time to time by the Client (provided such directions do not materially deviate from or add to the Statement of Work and any such material amendment must be agreed in accordance with clause 9.1);
      3. keep Client Materials reasonably safe and secure while they are in the possession or control of COPA90; and
      4. deliver all Services and Deliverables in accordance with the Project Timetable set out in the applicable Statement of Work or any other delivery date(s) agreed by the parties in writing.
    2. If at any time COPA90 becomes aware that it may not be able to perform the Services or deliver any Deliverables by any date set out in the applicable Statement of Work (or any other deadline agreed by the parties in writing), COPA90 will promptly notify the Client and give details of the reasons for the delay.
    3. COPA90's obligations, warranties and liabilities with regard to the Service, Deliverables and other provisions of this Agreement shall not apply to the extent of any non-conformance which is caused by: use of the Deliverables by the Client contrary to the terms of the Agreement; modification or alteration of the Deliverables by any party other than COPA90 or COPA90's duly authorised contractors or agents; combination or integration of the Deliverables with any third party or Client content or services contrary to the terms of the Agreement; the Client Materials; or by other Client breach of the Agreement. 
  6. Approvals
    1. The Client will provide, and ensure all relevant stakeholder Representatives are available to provide,  all comments, feedback and approvals in relation to any Deliverables or otherwise as soon as reasonably possible  but in any event in as necessary to allow both parties to meet their respective obligations under the Project Timetable.
    2. Requests for changes to the Deliverables will be limited to what is reasonable in relation to the specifications and objectives agreed in the Statement of Work, and in any event will be limited to two rounds of feedback and amendments.  Further amendments will be dealt with under clause 9.
  7. Distribution
    1. The Deliverables or other assets as applicable will be made available to the public in the Territory, via the Distribution Channels and in accordance with the other details as set out in the Statement of Work.
  8. Personnel
    1. COPA90 will allocate suitable personnel with appropriate levels of experience and seniority to provide the Services.  The Client acknowledges and agrees that it may be necessary for COPA90 to replace the personnel providing the Services with alternative personnel with similar levels of seniority and experience. 
  9. Amendments and cancellations
    1. In the event that either party wishes to make any material amendment to a Project, any such amendment shall be subject to the agreement of both parties in writing.   Otherwise all overages and costs considered out of scope will be invoiced separately from and in addition to the Fees.
    2. Subject to clause 9.3 the Client may, on giving reasonable notice, request COPA90 to cancel any Project or part thereof, including any plans, schedules or work in progress in respect of any Project. COPA90 will take all reasonable steps to comply with any such request provided that COPA90 is able to do so within its contractual obligations to suppliers.
    3. In the event of any cancellation the Client will reimburse COPA90 for all Fees up to the date of cancellation, including in relation to any Fees or costs incurred but not yet invoiced, together with any expenses, costs or third party charges incurred by COPA90 or to which COPA90 is committed, as well as any charges or other expenses or costs imposed on COPA90 by third parties arising from the cancellation, provided that COPA90 shall use reasonable endeavours to mitigate any such third party charges or expenses wherever possible. 
  10. Fees
    1. COPA90 will invoice the Client in respect of all Fees, and additional Expenses if any .
    2. The Fees, and additional Expenses if any will be invoiced in accordance with the payment schedule set out in the applicable Statement of Work and shall be payable within thirty (30) days of the date of the relevant invoice, or such other period as specified in the applicable Statement of Work.
    3. All sums stated in this Agreement or in any Statement of Work, quotation or estimate exclude VAT and any other applicable sales tax (unless otherwise stated) which shall also be payable by the Client at the rate prevailing from time to time.
    4. In the event that the Client fails to make any payment in full when due to COPA90 under this Agreement, then without prejudice to its other rights and remedies under or in connection with this Agreement or otherwise in law, COPA90 shall be entitled to charge the Client interest on such overdue sum at the rate of 4 % above the base rate of Barclays Bank in the UK in force from time to time calculated from the due date up to the date of payment.
    5. If the Client (acting reasonably and in good faith) has a bona fide reason to challenge the validity or accuracy of such invoice, the Client shall:
      1. immediately notify COPA90 in writing of the reason for such withholding;
      2. pay the undisputed part of such invoice in accordance with clause 10.2; and
      3. work promptly and in good faith with COPA90 to resolve any such dispute over the relevant invoice.
    6. If any payment of the Fees or Expenses is subject to tax (whether by way of direct assessment or withholding at its source), COPA90 shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to COPA90 of the Fees or Expenses after tax in respect of the payment is the same as it would have been were the payment not subject to such tax.
    7. If the Client is overdue with any payment hereunder, then without prejudice to COPA90’s other rights or remedies:
      1. COPA90 shall have the right to suspend performance of the Services on seven (7) days written notice until COPA90 has received payment of the overdue amount together with any accrued interest; and/or
      2. COPA90 shall have the right to terminate the applicable Statement of Work immediately upon seven (7) days written notice to the Client.
    8. Where a surcharge is levied by a supplier against COPA90 due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to COPA90 the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.
  11. Third Party Services & Costs
    1. Any third party costs, fees or licence fees to be incurred by COPA90 on behalf of the Client in performing the Services, will be budgeted for in the Fees. Any amendments of changes required will be dealt with in accordance with clause 9.1. 
  12. Confidentiality
    1. Each of the parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
    2. Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential, including the terms of this Agreement.
    3. Confidential Information shall exclude information which:
      1. at the time of receipt by the recipient is in the public domain;
      2. subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
      3. is lawfully received by the recipient from a third party on an unrestricted basis; and/or
      4. is already known to the recipient before receipt hereunder.
    4. Each of the parties undertake to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure. Neither party shall at any time, whether during the Term or at any time thereafter, without the prior written approval of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement. 
    5. Each of the parties undertakes to disclose the other party’s Confidential Information only to those of its Representatives to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement.
    6. The Client acknowledges and agrees that any identifiable and original idea or concept presented by COPA90 in relation to Project  developed by COPA90 shall be acknowledged as being available to the Client only for such Project and shall not be used for any other purposes whatsoever by the Client without COPA90’s express prior written approval. Even where no promotion or campaign is agreed, the ideas and concepts presented to the Client shall remain strictly confidential and shall not be used in any way, including communication to any third party, without COPA90’s prior written approval.
    7. The Client acknowledges that nothing in this Agreement shall affect COPA90’s right to use as it sees fit any general marketing or advertising intelligence gained by COPA90 in the course of its appointment. 
    8. Neither party shall be in breach of this Clause 12 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
    9. Each party hereby indemnifies the other party from and against all Losses arising out of or in connection with the other party’s breach of this Clause 12, including breach by each party’s Representatives.
  13. COPA90 warranties
    1. COPA90 warrants and undertakes that:
      1. it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party;
      2. the personnel who perform the Services are and shall be competent and suitable, whether as to qualifications, experience or otherwise, to provide the Services; and
      3. subject to clause 13.4 and 14 (Client Warranties), the use of the Deliverables by the Client in the Territory in accordance with this Agreement and for the purposes set out in the Statement of Work will not infringe the Intellectual Property Rights of any third party.
    2. COPA90 hereby indemnifies the Client against any Losses incurred by the Client as a result of breach by COPA90 of its warranty and undertaking in clause 13.1(c).
    3. All warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise are hereby excluded to the fullest extent permitted by law, including any condition of satisfactory quality or fitness for a particular purpose.
    4. The Client releases COPA90 from any liability under or in connection with this Agreement and hereby indemnifies COPA90 against any Losses incurred by COPA90 to the extent that such Losses arise as a result of:
      1. the Deliverables infringing third party Intellectual Property Rights, or breaching laws and regulations, where COPA90 had previously notified the Client of a specific risk that the Deliverables potentially infringed third party Intellectual Property Rights or breached laws and regulations and COPA90 had obtained the prior approval of the Client to use such Deliverables notwithstanding such notified risk; and/ or
      2. the incorporation of Client Materials or Client Talent and Client Locations into the Deliverables or other use of the same in accordance with the Agreement.
  14. Client Warranties
    1. The Client warrants and undertakes that:
      1. it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party;
      2. the Client Materials will not, when used in accordance with this Agreement, infringe third party Intellectual Property Rights, and otherwise are accurate and complete in all material respects;
      3. use of the Client Talent and Client Locations will not, when used in accordance with this Agreement, infringe third party Intellectual Property Rights, contracts, restrictions, personality rights or rights of privacy or confidence; and
    2. Client hereby indemnifies COPA90 against any Losses incurred by COPA90 as a result of breach by Client of its warranty and undertaking in clause 14.1 (b) and (c).
  15. Liability
    1. Subject to clauses 15.2 and 15.3 each party’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the a sum equivalent to the production Fees payable under the Statement of Work.   
    2. Subject to clause and 15.3 each party’s maximum aggregate liability under or in connection with the indemnities at clauses 12.9 (Confidentiality), 26 (Data), 13.2 (COPA90 indemnities) or 4.4, 13.4, 14.2 and 17.8 (Client indemnities), whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the a sum equivalent to £1,000,000 (one million pounds).
    3. Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.
    4. Subject to clause 15.3, in no event will either party be liable under or in connection with this Agreement for:
      1. loss of actual or anticipated income or profits;
      2. loss of goodwill or reputation;
      3. loss of anticipated savings;
      4. loss of data; or
      5. any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
    5. Where one party (“Indemnifying Party“) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under this Agreement, such indemnity is subject to the Indemnified Party complying with the following process in the event that a third party claim arises: 
      1. the Indemnified Party must promptly notify the Indemnifying Party in writing of such claim;
      2. the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party;
      3. the Indemnified Party gives the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence of the claim, save that the Indemnifying party may not conclude settlement of any negotiations and proceedings which may have a material effect (whether financial, practical or in terms of reputation) on the Indemnified party without the Indemnified party’s prior written consent which will not be unreasonably withheld;
      4. the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such claim as the Indemnifying Party may reasonably require at the Indemnifying Party’s cost and expense; and
      5. If within ninety (90) days after the Indemnifying Party’s receipt of notice of any such claim, the Indemnifying Party fails to take action to defend or settle such claim, the Indemnified Party may at the Indemnifying Party’s expense undertake the defence, compromise or settlement of the claim as it sees fit. 
  16. Insurance
    1. COPA90 shall take out and maintain insurance policies to the value sufficient to meet its liabilities under or in connection with this Agreement. Upon the Client’s reasonable request COPA90 will provide the Client with evidence that such insurance is in place.
    2. Client shall take out and maintain insurance policies to the value sufficient to meet its liabilities under or in connection with this Agreement,  including COPA90 as a named insured. Upon the COPA90’s reasonable request Client will provide COPA90 with evidence that such insurance is in place.
  17. Intellectual Property Rights - ownershipOPTION 1:  Deliverables owned by COPA90 and licenced to the Client
    1. If so specified under the Statement of Work, COPA90 will own the Deliverables (subject to the remaining provisions of this Clause 17) and subject to COPA90 receiving payment of all Fees, COPA90 grants to the Client a licence to use the Deliverables for the Licence Term in the Territory, on the Distribution Channels and otherwise for the purposes set out in the Statement of Work.
    2. COPA90 acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services and Deliverables) shall remain vested in the Client or its licensors. The Client hereby grants to COPA90 a non-exclusive licence during the applicable Term to use the Client Materials solely for the purposes of providing the Services and Deliverables.
    3. If the Client wishes to use the Deliverables:
      1. outside of the Territory; and/or
      2. after the  Licence Term; and/or
      3. outside of the Distribution Channels or purposes and/or media other than as set out in the Statement of Work;

    then the Client shall notify COPA90 of any requested use of Deliverables and will pay COPA90 a fee to be agreed by the parties.

    OPTION 2: Deliverables to be owned by Client (and assigned to the Client)

    1. If so specified under the Statement of Work, the Client will own the Deliverables (subject to the remaining provisions of this Clause 17) and subject to COPA90 receiving payment of all Fees COPA90 hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in Deliverables which are capable of being assigned, save for any Third Party Materials or COPA90 Proprietary Materials 
    2. The Client acknowledges that all Intellectual Property Rights in COPA90 Proprietary Materials shall be owned by and remain the property of and vested in COPA90. Subject to COPA90 receiving payment of all Fees, COPA90 hereby grants to the Client a licence to use such COPA90 Proprietary Materials as are included in the Deliverables, in the Territory, on the Distribution Channels, for the Licence Term and for the purposes set out in the Statement of Work.
    3. If the Client wishes to use the Deliverables outside of the Territory, Distribution Channels or the Licence Term then the Client shall notify COPA90 of any requested use of Deliverables and will pay COPA90 a fee to be agreed by the parties.
    4. To the extent necessary to fulfil the obligations and rights in relation to the Distribution Channels, the Client grants to COPA90 a licence to use the Deliverables in the Territory, on the Distribution Channels and otherwise for the purposes set out in the Statement of Work.

    IN EITHER OPTION:

    1. COPA90 shall obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Material as are included in the Deliverables for the purposes set out in the Statement of Work.  COPA90 shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Material, and the Client hereby indemnifies and keeps COPA90 indemnified against any Losses suffered by COPA90 as a result of the Client or its Affiliates breaching any such restrictions.
    2. COPA90 agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the Deliverables, and shall not do or fail to do any act which would or might prejudice the Client’s rights under this Clause 17.
    3. To the extent permitted by law, COPA90 shall use its reasonable endeavours to ensure that all Moral Rights in the Deliverables are waived (or where not lawfully possible to waive Moral Rights, COPA90 agrees to procure that Moral Rights are not asserted in respect of Third Party Materials). 
    4. Notwithstanding any of the above and save as otherwise expressly provided for in a Statement of Work, COPA90 shall in “OPTION 1:  Deliverables owned by COPA90”:
      1. own all b-roll, rushes, outtakes, behind the scenes, edits, drafts, formats, ideas and concepts created or used during the Project;
      2. retain and be entitled to use all learnings and know how obtained in connection with the Services and Deliverables that do not constitute the Confidential Information of the Client.
  18. Advertising and Content Regulations
    1. Both parties acknowledge that they have a responsibility to comply with all Advertising and Content Regulations.
    2. The parties will co-operate with each other in ensuring that the Project is fulfilled as required to satisfy the requirements of any applicable Advertising and Content Regulation..
    3. COPA90 is not responsible for content or regulatory compliance in relation to distribution of any Deliverables on Client  channels.
  19. Termination
    1. The Client may cancel a Project subject to clause 9 and payment of all  Fees and/or third party charges as referred to in clause 9. 
    2. Either party may terminate this Agreement immediately upon written notice to the other party:
      1. under Clause 22.4 (Force Majeure); or
      2. in the event of any material breach of this Agreement by the other party which breach is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the party not in default of a written notice on the defaulting party, specifying the nature of the breach and requiring such breach to be remedied; or
      3. the other party suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
      4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal or enters into any compromise or arrangement with its creditors (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or
      5. if a petition is filed, or a notice is given, or a resolution is passed or an order is made for or in connection with the winding up of that other party (other than for the sole purpose of a solvent reconstruction or a scheme for a solvent amalgamation of that other party with other companies); or
      6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party.
  20. Consequences of Termination
    1. Upon termination of this Agreement for any reason:
      1. the Client shall pay COPA90 all Fees and any additional Expenses if any due to COPA90 (including in  accordance with clause 9 where relevant) including during the notice period, including in relation to any Fees or costs incurred but not yet invoiced; and
      2. Subject to clause 20.1 (a) each party shall on the reasonable request of the other party promptly deliver or dispose of any and all materials and property belonging or relating to the other party (including all Confidential Information) and all copies of the same, which are then in its possession, custody or control and which relate to all affected Projects, and shall on the request of the other party certify in writing that the same has been done.
    2. Provisions of this Agreement which are either expressed to survive its termination or which from their nature or context are contemplated to survive termination shall remain in full force and effect notwithstanding termination of this Agreement.  Notwithstanding the generality of the foregoing, the following clauses shall survive termination of this Agreement: Clause 12 (Confidentiality); Clause 13 (COPA90 warranties); Clause 14 (Client warranties); Clause 15 (Liability); Clause 16 (Insurance); Clause 17 (Intellectual Property Rights); Clause 20 (Consequences of Termination); Clause 21 (Non-Solicitation); Clause 23 (Notices); Clause 26 (Data Protection), Clause 28 (Press and PR); and Clause 29 (Governing law and jurisdiction).
  21. Non-Solicitation
    1. During the Term and for a further period of 6 months after its termination, neither party shall (except with the prior written approval of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party either in the provision or receipt of any Services or Deliverables, other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.
  22. Force Majeure
    1. Neither party shall be liable for any delay in performing or failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any act, event, non-happening, omission or accident beyond its reasonable control (a “Force Majeure Event”).
    2. Force Majeure Events shall include but not be limited to the following events affecting either party or its Representatives:
      1. strikes, lock-outs or other industrial action (other than strikes, lock-outs or other industrial action of any Representatives of the party seeking to rely on the Force Majeure Event);
      2. civil commotion, riot, invasion, war (whether declared or not), terrorism, or threat of or preparation for military action or terrorist attack;
      3. fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster;
      4. impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
      5. restrictions imposed by or actions or delay of local governments, authorities, governing bodies, border agencies or other agencies, bodies or authorities  and/or
      6. compliance with any law or governmental order, rule, regulation or direction.
    3. The party whose performance is affected by a Force Majeure Event shall, as soon as reasonably practicable after becoming aware of the Force Majeure Event, provide a written notice to the other party, giving details of the Force Majeure Event, its likely duration and the manner and extent to which its obligations are likely to be prevented or delayed. 
    4. If any Force Majeure Event occurs, the date(s) for performance of the affected obligation(s) shall be postponed for so long as is made necessary by the Force Majeure Event, provided that if any Force Majeure Event continues for a period of or exceeding one (1) month, the non-affected party shall have the right to terminate this Agreement immediately on written notice to the affected party.  Each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.
    5. If any production of the Deliverables is cancelled, delayed or disrupted due to any Force Majeure Event:
      1. COPA90 shall use its reasonable endeavours to recover any third party charges relating to the cancelled, delayed or disrupted Deliverables and will account to the Client for any such third party charges it is able to recover;
      2. the Client will be liable to COPA90 and will reimburse COPA90 for any third party charges relating to the cancelled, delayed or disrupted Deliverables which COPA90 is not able to recover or which COPA90 is committed to pay, as well as any Losses suffered by COPA90 as a result of such act or threatened act of terrorism or military action. 
  23. Notices
    1. A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at the address given in this Agreement or as otherwise notified in writing to the other party, and copied to the in the case of COPA90: Damien Macaulay, CFO; and in the case of the Client: General Counsel / Head of Legal.
    2. The following table sets out methods by which a notice may be sent and, if sent by that method, the corresponding deemed delivery date and time:

      Delivery method

      Deemed delivery date and time

      Delivery by hand.

      On signature of a delivery receipt.

      Pre-paid first class recorded delivery post or other next working day delivery service providing proof of postage.

      9.00 am on the second Business Day after posting.

      Pre-paid airmail providing proof of postage.

      9.00 am on the fifth Business Day after posting

    3. For the purpose of this clause and calculating deemed receipt all references to time are to local time in the place of deemed receipt.
    4. This clause does not apply to the service of any proceedings or other documents in any legal action or other method of dispute resolution.
    5. A notice given under this Agreement is not valid if sent by e-mail or fax.
  24. Assignment and Sub-Contracting
    1. COPA90 shall be entitled to sub-contract its performance of the Services and/or Deliverables provided that any sub-contracting shall not relieve COPA90 from its obligations to the Client under this Agreement
    2. Neither party may assign, transfer or charge or otherwise dispose of this Agreement or any of its rights or obligations arising hereunder without the prior written approval of the other party.
  25. Third Party Rights
    1. Save in respect of the Client’s Affiliates to whom COPA90 has provided Services and/or as identified in an applicable Statement of Work, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
  26. Data and Data Protection
    1. To the extent that any personal data is collected or generated from users or viewers as part of the Services, the parties will agree their respective rights and ownership with regard to such personal data.
    2. To the extent that, in connection with its supply of the Services, COPA90  may be required to process personal data on behalf of the Client, the parties will each comply with the terms and conditions of Schedule 1 – the Data Processing Agreement Schedule.
  27. Anti Bribery
    1. Both parties:
      1. Shall comply with the Bribery Act 2010 and any guidance issued by any governmental department relating to such legislation (“Bribery Act”)
      2. Shall not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the Bribery Act if such activity, practice or conduct had been carried out in the UK;
      3. Shall maintain in place throughout the Term (and enforce where appropriate) its own policies and procedures to ensure compliance with the Bribery Act;
      4. Shall promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement;
      5. shall ensure that it imposes written terms on any sub-contractor connected with the matters arising under this Agreement which are at least equivalent to those imposed on COPA90 in this clause. 
  28. Press and PR
    1. Neither party shall make or issue any announcement or public circular relating to the subject matter of this Agreement without the prior written approval of the other.
    2. Notwithstanding the above, COPA90 shall be able during and after the Term be permitted to use any Deliverables which have been published, distributed or otherwise made available to the public, and the Client’s name and logo for the purposes of promoting its work and its business including on COPA90’s website, in credentials pitches and in its showreel.  Any other use by COPA90 shall be subject to the Client’s prior approval.
    3. COPA90 will be entitled to branding and credits on all Deliverables unless otherwise specified in the Statement of Work, which shall not be removed by the Client without prior approval in writing.
  29. General
    1. The failure of either party to enforce or exercise at any time any term or any right under this Agreement does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect that party’s later right to enforce or to exercise it.
    2. If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
    3. This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing, along with any purchase order issued by the client at any time. 
    4. Each of the parties acknowledges and agrees that:
      1. in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in this Agreement; and
      2. its only remedies in connection with any statements, representations, warranties and understandings expressly set out in this Agreement shall be for breach of contract as provided in this Agreement.  Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.
    5. No modification or variation of this Agreement shall be valid unless it is in writing and signed by each of the parties to this Agreement. Unless expressly set out in this Agreement, no modification or variation of this Agreement shall:
      1. be construed as a general waiver of any provisions of this Agreement; or
      2. affect any rights, obligations or liabilities under this Agreement which have already accrued up to the date of such modification or waiver. The rights and obligations of the parties under this Agreement shall remain in full force and effect, except and only to the extent that they are so modified or varied.
    6. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
  30. Governing Law and Jurisdiction
    1. This Agreement shall be governed by and construed in accordance with the laws of England and Wales.
    2. Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute between them arising under or in connection with this Agreement (save in respect of enforcement of judgments where their jurisdiction shall be non-exclusive).

Schedule 1

Data Processing Agreement Schedule

Background

(A) The Client has appointed the Supplier to provide Services to the Client under the terms of the Agreement.

(B) In connection with its supply of those Services, Supplier may be required to process personal data on behalf of the Client as further described in section 2.2 below (the “Data Processing Services”).

(C) This Schedule is intended to be read in conjunction with the Agreement and shall supersede any provisions relating to the processing of personal data in the Agreement.

Agreed terms

1 Interpretation

1.1 The following definitions and rules of interpretation apply in this SCHEDULE.Data Protection Legislation: means Data Protection Act 1998, the EU Data Protection Directive 95/46/EC, the GDPR (the EC Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (when in force), the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable, any guidance notes and codes of practice issued by the European Commission and applicable national Regulators including the UK Information Commissioner;

Regulator: means any regulatory body with responsibility for ensuring compliance with Data Protection Legislation.

Security Breach: means accidental or deliberate, unauthorised or unlawful acquisition, destruction, loss, alteration, corruption, access, use or disclosure of personal data processed under to this SCHEDULE or breach of Supplier’s security obligations under this SCHEDULE.

Supplier: means COPA90 Limited.

1.2 References in this SCHEDULE to “data controller”, “data processor”, “processing”, “data protection officer” and “personal data” shall have the same meaning as defined in Data Protection Legislation.

1.3 In the event that a provision of this SCHEDULE conflicts with any other provision of the Agreement, the provision in this SCHEDULE shall prevail to the extent of such conflict.

2 The Data Processing Services and obligations

2.1 The parties agree that in respect of any personal data processed in connection with this SCHEDULE that Client shall be the “data controller” and Supplier or Sub Processor shall be the “data processor”.

2.2 The parties acknowledge and agree that in order to provide the Data Processing Services, Supplier may process personal data on behalf of the Client during the term of the Agreement. The nature and purpose of the processing will be to access, retrieve, store and/or process the personal data in conjunction with the provision of the Services or as otherwise set out in the Agreement.  The types of personal data being processed, and the categories of data subject will be as set out in the Agreement in order to provide the Services.

2.3 Each party acknowledges and agrees that each party has respective rights and obligations under applicable Data Protection Legislation.

2.4 SUPPLIER shall, without prejudice to its other rights or obligations, in respect of its processing of such personal data:

(a) process the data only to the extent, and in such a manner, as is necessary for the purposes of this SCHEDULE and in accordance with Client’s lawful documented instructions from time to time, and SUPPLIER shall not process, nor permit the processing, of the data for any other purpose. If SUPPLIER is unsure as to the parameters of the instructions issued by Client and/or believes that Client’s instructions may conflict with the requirements of Data Protection Legislation, SUPPLIER may notify Client for clarification;

(b) ensure the reliability of all its personnel who have access to the data and shall in particular ensure that any person authorised to process data in connection with this SCHEDULE is subject to a duty of confidentiality;

(c) at Client’s cost provide Client with reasonable co-operation and assistance in relation to Client’s own obligations and rights under Data Protection Legislation including providing the Client and any relevant Regulator as applicable with all reasonable information and assistance relating to: notification and investigation of Security Breaches; carrying out privacy impact assessments; using appropriate technical and organisational measures in relation to security of processing; responding to and complying with data subject requests and the exercising of data subject rights; or otherwise to demonstrating Client’s compliance with Data Protection Legislation.

(d) having regard to the state of technological development and the cost of implementing any measures, take such technical and organisational measures against the unauthorised or unlawful processing of data and against the accidental loss or destruction of, or damage to data, to ensure a level of security appropriate to: a) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage of the data; and b) the nature of the data to be protected provided that where such measures may require the use of resource and/or cost additional to that usually provided or incurred, or anticipated, by SUPPLIER, Client agrees to pay for the same (in addition to any other charges or fees, provided that SUPPLIER has notified Client of the fact that additional charges or cost may be payable;

(e) at Client’s cost, without undue delay notify Client, and provide such co-operation, assistance and information as Client may reasonably require if SUPPLIER:

(i) receives any complaint, notice or communication which relates directly or indirectly to the processing of the personal data under this SCHEDULE or to either party’s compliance with Data Protection Legislation; and/or

(ii) becomes aware of any Security Breach;

(f) be entitled to engage sub processors to process data (or otherwise sub-contract or outsource the processing of any data to a third party) (a “Sub processor”) including those already engaged by the SUPPLIER, provided that it:

(i) notifies Client of any new or replacement Sub processors.  If Client objects to the appointment of a new or replacement Sub processor, it shall notify Client within five business days.

(ii) enters into a written contract with the Sub processor that: provides protections or guarantees that Sub processor considers necessary to implement appropriate technical and organisation measures in compliance with the Data Protection Legislation; and terminates automatically on termination or expiry of this SCHEDULE for any reason, and

(iii) remains liable for all acts or omissions of the Sub processors as if they were acts or omissions of SUPPLIER (except to the extent caused or exacerbated by Client).

(g) at Client’s cost, return or destroy (as directed in writing by Client) all personal data it has in its possession and delete existing copies unless applicable law requires storage of the personal data.

(h) to the extent that SUPPLIER is required to transfer personal data pursuant to this SCHEDULE, including to the approved Sub-processors, to a territory outside of the EEA that does not have a finding of adequacy by the European Commission, the parties shall either (i) execute or procure the execution of the standard contractual clauses set out in Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC (“Model Clauses”) or (ii) agree another more appropriate lawful data Transfer Mechanism exists, for example were the Sub-processor transferee has a Privacy Shield Certification. The parties agree that if the Model Clauses (or agreed alternative mechanism) cease to exist or are no longer considered by both parties to be a lawful method of transferring personal data outside of the EEA, the parties shall have a good faith discussion and agree an alternative lawful Transfer Mechanism and SUPPLIER may cease or procure that the relevant third party cease the processing of personal data until such time as the parties have agreed an alternative transfer mechanism to enable the personal data to be transferred outside of the EEA in a compliant manner.

2.5 Client, without prejudice to its other rights or obligations, shall comply with its obligations under applicable Data Protection Legislation and shall in particular ensure that it has appropriate rights and legal basis, or other ability to process personal data and that SUPPLIER is lawfully permitted to process personal data on its behalf, and will not give SUPPLIER any instructions that would cause SUPPLIER to be in breach of the Data Protection Legislation.