Terms & Conditions
1. Application and entire agreement
1.1 These Terms and Conditions apply to the provision of the services detailed in our Order Form (Services) by Luke Sibbald-Dale trading as Astery of 48 Hurtwood Road, Surrey, KT12 3QT (we or us or Service Provider) to the person buying the services (you or Customer).
1.2 You are deemed to have accepted these Terms and Conditions once you return an Order Form with a signature or from the date of any performance of the Services (whichever happens earlier). Once an Order Form is signed by both the Customer and Astery, this creates a legally binding Agreement between the Customer and Astery. These Terms and Conditions and our Order Form (the Agreement) are the entire agreement between us.
1.3 You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Terms and Conditions apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.4 If there are any conflicts or inconsistencies between any provision of these Terms and Conditions and an Order Form, the terms of the Order Form shall apply.
2 Definitions & Interpretation
2.1 The following definitions and rules of interpretation apply in the Agreement along with any terms in the Order Form. The following definitions and rules have the following definitions:
Archive Fee: a fee set out in the Order Form relating to archive services for the final Video and Raw Materials.
Brief: the video brief which is described in the Order Form.
Business Day: a “business day” means any day other than a Saturday, Sunday or bank holiday in England and Wales.
Cost: the costs and expenses including any Third-Party Material costs detailed in the Order Form.
Customer Materials: all materials provided by the Customer including acceptances or approvals, footage, scripts, branding material, images, logos, performances, and any services provided by the Customer which includes any contributions, consultants, talent, freelancers produced by the Customer to Astery relating to the Service, Video and Deliverables as outlined in the Order Form or agreed in writing.
Customer: the Customer purchasing Services from Astery as identified in the Order Form.
Customers Location: the Customers locations at which the Video will be undertaken as specified on the Order Form.
Deliverables: any deliverable material outlined in the Order Form.
Deposit: The upfront amount charged before works begin.
Order Form: the document set out by Astery to the Customer specifying the details of the Services to be performed, along with the Costs and agreed Deliverables. Once signed by an authorised representative of the Customer and Astery both parties agree to the Terms & Condition in this document.
Pre-Production Material: the materials prepared by Astery and presented to the Customer before the Shoot Date which details the shot list, script, location(s), crew members, cast members, props, costumes and a detailed breakdown of the Services.
Production Materials: materials used in process of carrying out the Service and creating the Video, including scripts, voiceovers, storyboards, music, draft versions.
Production Schedule: Agreed dates, times and locations for the production and post-production of the Video as attached to the Order Form.
Raw Materials: the original footage or assets which are created by Astery during or after the rushes phase and before the final production of the Video. These are used to create and form the final Video.
Service: the services provided by Astery as detailed in the Order Form concerning the Video and Deliverables.
Shoot Date: the date or dates specified when the audio-visual session(s) will commence to create the Video.
Terms: these Terms and Conditions.
Third-Party Materials: materials identified in the Order Form which are owned or licensed by a third party and used in connection with the Video and Deliverables.
Video: the video(s) to be produced by Astery as agreed in the Order Form.
2.2 The headings in these Terms and Conditions are for convenience only and do not affect their interpretation.
2.3 Words imparting the singular number shall include the plural and vice-versa.
2.4 References to writing and written include any mode of reproducing words in a legible and non-transitory form including emails.
2.5 The terms, words and phrases including “other”, “including”, “in particular”, “for example” or any similar expression shall not limit the generality or sense of any preceding words, description, definition, phrase or term.
2.6 Any reference to a person shall include an individual, partnership, corporate or unincorporated body.
2.7 References to any party shall include that party’s personal representatives, successors and permitted assigns.
3 Production Process
3.1 The parties agree to consult in good faith with each other over the creative and artistic direction of the Video. The Video will be created in accordance to the Order Form provided that the Customer shall give good faith consideration to Astery’s views as a professional production company, have final editorial and artistic control over the Video.
3.2 The Customer is encouraged to approve any Pre-Production Material at least 5 business days before the Shoot Date and acknowledges a failure to do so can result in delays to the Shoot Date and/or Video. Astery is not required to capture any of the shots on the shot list but will use its best endeavours to capture all requested shots.
3.3 At various stages, Astery may submit Production Materials to the Customer for acceptance. The Customer shall ensure feedback in respect of the Production Materials shall be iterative and detailed and the feedback in the second, third or any subsequent rounds shall not include new feedback or changes which have not been included in earlier feedback iterations.
3.4 Following the submission of each Production Material in accordance to clause 1 the Customer agrees to promptly communicate it’s acceptance (or otherwise) to Astery in writing. If the Customer is not satisfied with any materials it shall notify Astery in writing within ten (10) Business Days or the specific timelines set out in the Production Schedule whilst providing detailed and appropriate comments or requesting changes in according to the Order Form. The Costs include up to three rounds of amends all in line with that set out in the Order Form. Astery will make all necessary changes in consultation with the Customer. Astery will then re-submit the revised Production Materials and the provisions of clause 3.4 will apply again until the Customer has reached the maximum amount of amends it’s entitled to under clause 3.4. If Astery does not receive notice of acceptance or otherwise by writing within ten (10) Business Days or the period set out in the Production Schedule the Customer will be deemed to have accepted such material. Provided the Deliverables materially comply with the Order Form, the Customer shall not be able to reject the Deliverables.
3.5 The Customer is responsible and liable for any additional costs incurred by Astery arising from;
3.5.1 Requests to make amendments in addition to those provided in clause 3;
3.5.2 any work that falls outside the scope of the Order Form
3.5.3 changes to already accepted materials, work or any changes to the Deliverables
3.5.4 changes which we’re not agreed upon in the accepted Pre-Production Material
3.5.5 any delays from the Customer in the Production Schedule
3.5.6 any increases in costs as a result of a change in the Customers request, Deliverables or Order Form.
3.6 Astery will advise the Customer of the additional costs laid out in clause 3.5 where possible before they are incurred. Astery shall raise an invoice for such costs at any time and the Customer shall be responsible for payment of the invoice within 15 days of receipt.
3.7 In the event of delay in the delivery of Customer Materials and/or failure from the Customer to comply with its obligations under clause 4, Astery shall without limitations to any other rights under this Agreement be entitled to delay the performance of the Services and Deliverables by a reasonable period.
3.8 Astery will provide the Customer with an opportunity to accept or refuse the Deliverables at a rough-cut and final cut stage by supplying a hard drive or uploading the Deliverables onto a server for online review. The Customer shall be entitled to request reasonable amendments to ensure the Deliverables is in line with the Order Form, which shall be undertaken by Astery. If the Customer does not request amends by writing within ten (10) Business Days of the making available of the Deliverables to the Customer, acceptance of the Deliverables shall be deemed granted, and the Customer will not be entitled to dispute, reject, or request any changes to the Deliverables, the Customer shall not be entitled to reject any proper invoice issued in respect to the Costs of the Deliverables.
4.1 Astery shall maintain the following;
4.1.1 public liability insurance with £5 million pounds cover per claim
4.1.2 professional indemnity insurance with £1 million pounds cover per claim
4.2 The Customer shall be responsible for ensuring the Customers Location is available and ready for the Shoot Date and purposes of creating the Video, including but not limited to:
4.2.1 monitoring, removing and disposing of any dangerous or hazardous material before and during the supply of Services;
4.2.2 establishing and maintaining all health hand safety rules and regulations and any other security requirements;
4.2.3 obtaining any licenses or relevant permits and permission to films at the Customers Location;
4.2.4 Informing their staff, customers and any other relevant personal at the Customers Location of the Services Astery is providing and obtaining any required release forms;
4.2.5 ensure there is appropriate space to undertake our Services;
4.2.6 ensure there are safe areas to store Astery’s equipment.
4.3 The Customer shall provide its acceptance of the Deliverables and the Services and the Pre-Production Material in a promptly as detailed in clause 3.
4.4 The Customer shall provide the Customer Materials in accordance with the Production Schedule at no cost of Astery and ensure that they will all be relevant, up to date and suitable for purpose of carrying out any Services.
4.5 The Customer must obtain any permissions, consents, licences or otherwise that we need and must give us with access to any and all relevant information, materials, properties and any other matters which we need to provide the Services.
4.6 If you do not comply with clause 4.5, we can terminate the Services.
4.7 We are not liable for any delay or failure to provide the Services if this is caused by your failure to comply with the provisions of this section (Obligations). The Customer shall be liable to pay Astery all reasonable costs, losses or charges incurred by Astery that arise directly or indirectly from the Customers negligence or failure to perform or delay in the performance of any of its obligations under an Agreement.
5 The Services
5.1 We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the Order Form, including any specification in all material respects. We can make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and we will notify you if this is necessary.
5.2 We will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out in the quotation; however, time shall not be of the essence in the performance of our obligations.
5.3 All of these Terms and Conditions apply to the supply of any goods as well as Services unless we specify otherwise.
6.1 Upon completion of the Service in accordance with clause 3 and payment of any outstanding element of the Cost in accordance with clause 7 Astery shall deliver the Deliverables to the Customer by making a 1080p MP4 file available on the DropBox platform (or any other platform Astery chooses to use at the time) for a period of 6 months from completion of the Services.
6.2 As part of the Astery’s Services and the Costs set out in the Order Form, Astery shall store the Video and Raw Materials if storage was agreed in the Order Form. Astery will continue to store the Video and Raw Materials in its Archives and charge the annual Archive Fee stated in the Order Form as Storage. In the event the Customer wants these Raw Materials destroyed it shall provide no less than three (3) months notice at any time before the end of the initial Archive Period and pay Astery a fee for the destruction of the Raw Materials.
6.3 Unless stated otherwise Astery own’s the rights to all the Raw Materials, if the Customer want’s access to the Raw Materials there will be an additional fee.
6.4 The Customer agrees that Astery is not liable for any perceived deficiencies in the final products caused by actual or perceived imperfections as a result of any artists, performers, customers, employees, extras, hired or provided to the Service by the Customer. The Customer is liable for any additional costs incurred by re-shooting by the actions of such results.
7 Fees and Deposits
7.1 The costs (Cost) for the Services are set out in the Order Form.
7.2 In addition to the Costs, we can recover from you;
7.2.1 reasonable incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses;
7.2.2 the cost of services provided by third parties and required by us for the performance of the Services as detailed in the Order Form;
7.2.3 the cost of any materials required for the provision of the Services as detailed in the Order Form.
7.3 The Fees are inclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.
7.4 Upon execution of an Agreement, payment obligations are non-cancellable unless stated otherwise on the Order Form.
7.5 You must pay a deposit (Deposit) as detailed in the Order Form in accordance with the time period specified on the Order Form. Astery reserves the right at its sole discretion not to commence performance of, or begin any preparations to perform, the Services until the Customer has made the advance payment of the Deposit. The Customer acknowledges any failure to pay the Deposit may affect the timing and performance of the Services and could lead to an increase in the Costs.
7.6 If you do not pay the Deposit to us according to clause 7.5, we can either withhold provision of the Services until the Deposit is received or can terminate under the clause below (Termination).
7.7 Astery will issue a balancing invoice to the Customer for the remainder of the Costs prior to the delivery of the Deliverables. The Customer must pay this invoice before delivery of the Deliverable and in accordance with the payment terms specified on the Order Form. If no terms are specified on the Order Form the Customer agrees to pays the Costs within 30 days of the date of our invoice.
7.8 All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.
7.9 All payments must be made in British Pounds (£) unless otherwise agreed in writing between us.
7.10 The Deposit is non-refundable unless we fail to provide the Services and are at fault for such failure (where the failure is not our fault, no refund will be made).
7.11 Without prejudice to another right or remedy that it may have, if the Customer fails to pay any sum to Astery on the due date:
7.11.1 the Customer shall pay interest on the overdue amount at a rate of 4.5% per annum above the Bank of England Bank Rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount;
7.11.2 Astery may not supply any Deliverables;
7.11.3 Astery may suspend all Services being provided under the Agreement until payment has been made in full.
8 Intellectual Property and Credits
8.1 Upon full payment of the Costs by the Customer, Astery hereby grants the Buyer a perpetual, worldwide, royalty-free, non-transferable license to use all intellectual property rights belonging to Astery and comprised in the Deliverables.
8.2 The Customer acknowledges the licenses granted in clause 8.1 does not allow the Customer to use the Deliverables for promotion on behalf of, in combination with, or for the benefit of any third party. Such use requires written agreement from Astery and may be subject to additional costs.
8.3 The Customer agrees to credit Astery as “Astery” in the Video and any other videography, post-production or Services rendered by Astery where asked or appropriate to do so.
8.4 The Customer authorises Astery to insert a credit as the producer in the Video with its name ‘Astery’ and web address on all online versions of the Video along with any hard copies.
8.5 Astery (and its subcontractors) shall have the non-exclusive, worldwide, irrevocable, royalty-free right and licence from delivery of the Deliverables to the Customer, to use the final Video(s) (or any part thereof) for its own promotional use, including on Astery’s or its subcontractors’ website, as part of its showreels and as part of its portfolio of works.
8.6 The Customer acknowledges that the Intellectual Property Rights in the Raw Materials are to be retained by Astery, subject to clause 1.4. If the Customer wishes to acquire an assignment of all Intellectual Property Rights of the Raw Materials, such acquisition shall be subject to payment of a fee and separate terms to be agreed by the parties.
9 Cancellation and amendment
9.1 Astery can withdraw, cancel or amend an Order Form if it has not been accepted by you, or if the Services have not started, within a period of 7 Business Days from the date of the Order Form, (unless the quotation has been withdrawn).
9.2 Either Astery or the Customer can cancel an order for any reason prior to your acceptance (or rejection) of the Order Form.
9.3 If you want to amend any details of the Services you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and additional costs will be included in the Costs and invoiced to you.
9.4 Should the Services be cancelled after acceptance of the Order Form, on grounds for which Astery is not answerable the following charges will apply:
9.4.1 Cancellation with less than 7 business days’ notice 100% of the Cost will be charged.
9.4.2 Cancellation with more than 7 business days’ notice 50% of the Cost will be charged.
9.5 If, due to circumstances beyond Astery’s control, including those set out in the clause 14 (Circumstances beyond a party’s control), Astery have to make any change in the Services or how they are provided, we will notify you immediately. We will use reasonable endeavours to keep any such changes to a minimum
10 Sub-Contracting and assignment
10.1 Astery can at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under these Terms and Conditions and can subcontract or delegate in any manner any or all of our obligations to any third party.
10.2 The Customer must not, without Astery’s prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions
11.1 Astery can terminate the provision of the Services immediately if the Customer;
11.1.1 commits a material breach of their obligations under these Terms and Conditions;
11.1.2 fails to make pay any amount due under the Agreement on the due date of the Costs;
11.1.3 are or become or, in Astery’s reasonable opinion, are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debt or;
11.1.4 enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors;
11.1.5 or convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for your winding-up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency.
12 Liability and Indemnity
12.1 Our liability under these Terms and Conditions, and in breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this section.
12.2 The total amount of our liability is limited to the total amount of Fees payable by you under the Agreement.
12.3 We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Services or the performance of any of our other obligations under these Terms and Conditions or the Order Form for:
a. any indirect, special or consequential loss, damage, costs, or expenses or;
b. any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third party claims; or
c. any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; or
d. any losses caused directly or indirectly by any failure or your breach in relation to your obligations; or
e. any losses arising directly or indirectly from the choice of Services and how they will meet your requirements or your use of the Services or any goods supplied in connection with the Services.
12.4 You must indemnify us against all damages, costs, claims and expenses suffered by us arising from any loss or damage to any equipment (including that belonging to third parties) caused by you or your agents or employees.
12.5 Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability.
13 Data Protection
13.1 When supplying the Services to the Customer, the Service Provider may gain access to and/or acquire the ability to transfer, store or process personal data of employees of the Customer.
13.2 The parties agree that where such processing of personal data takes place, the Customer shall be the ‘data controller’ and the Service Provider shall be the ‘data processor’ as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time.
13.3 For the avoidance of doubt, ‘Personal Data’, ‘Processing’, ‘Data Controller’, ‘Data Processor’ and ‘Data Subject’ shall have the same meaning as in the GDPR.
13.4 The Service Provider shall only Process Personal Data to the extent reasonably required to enable it to supply the Services as mentioned in these terms and conditions or as requested by and agreed with the Customer, shall not retain any Personal Data longer than necessary for the Processing and refrain from Processing any Personal Data for its own or for any third party’s purposes.
13.5 The Service Provider shall not disclose Personal Data to any third parties other than employees, directors, agents, sub-contractors or advisors on a strict ‘need-to-know’ basis and only under the same (or more extensive) conditions as set out in these terms and conditions or to the extent required by applicable legislation and/or regulations.
13.6 The Service Provider shall implement and maintain technical and organisational security measures as are required to protect Personal Data Processed by the Service Provider on behalf of the Customer.
13.7 Further information about the Service Provider’s approach to data protection are specified in its Data Protection Policy, which can be found at https://astery.co.uk/privacy-policy/. For any enquiries or complaints regarding data privacy, you can email: email@example.com.
14 Circumstances beyond a party’s control
14.1 Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question. If the delay continues for a period of 90 days, either of us may terminate or cancel the Services to be carried out under these Terms and Conditions.
15.1 All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
15.2 Notices shall be deemed to have been duly given:
a. when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
b. when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;
c. on the fifth business day following mailing, if mailed by national ordinary mail; or
d. on the tenth business day following mailing, if mailed by airmail.
15.3 All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party.
16 No waiver
16.1 No delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy.
17.1 If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).
18 Law and jurisdiction
18.1 This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.
Updated: March 2020