FEREF LIMITED
TERMS AND CONDITIONS OF BUSINESS.

1. DEFINITIONS

1.1 In these terms and conditions the following words shall have the following meanings:

"Authorised Representative" means, in the case of the Client, the person(s) identified in an Engagement Letters as its authorised representative and, in the case of Feref, a Director of Feref.

Business Day” means a day (other than a Saturday or a Sunday) on which the clearing banks in the City of London are open for business;

Commissioned Material” means all artwork, copy, models, designs, photographs, software, films, sound recordings and all other material the creation of which is commissioned by Feref from third parties during the term of the Contract in connection with the provision of the Services.

Contract” means the agreement between Feref and the Client for the provision of certain Goods and/or Services constituted by the written acceptance by the Client or (as appropriate) Feref of an Engagement Letter specifically incorporating these terms and conditions.

"Client" means the person, firm or company for whom Feref has agreed to provide Services and/or Goods.

"Client Material" means all artwork or other materials of any nature provided by the Client in connection with the Services.

Engagement Letter” means a letter from Feref to the Client or from the Client to Feref detailing the Services and/or Goods to be provided by Feref to the Client and any specific terms proposed to apply in relation thereto.

"Event of Default" means the making of an arrangement or composition with or general assignment for creditors; becoming insolvent; suffering the appointment of an administrator or an administrative receiver over any assets; the passing of a resolution or presentation of a petition for the winding-up (except for purposes of reconstruction or amalgamation) or making of an administration order; doing or suffering any other act or event by whatever designation it may be known; ceasing or threatening to cease to carry on business; being unable to pay debts as they fall due for the purposes of Section 123 of the Insolvency Act 1986.

Existing Material” means all or any part of any photograph, TV programme, feature film, character, music, sound recording, performance, book, painting, software or any other material protected by Rights, created by a third party and in existence at the time it is desired to make use of it for the purposes of the provision of the Services.

Feref” means Feref Limited (Company Registration Number 932910) whose registered office is situated at 17-18 Great Pulteney Street, London, W1F 9NE.

Feref Material” means all artwork, copy, models, designs, photographs, software and all other material created by Feref in connection with the provision of the Services by directors or employees of Feref, provided that it is approved by the Client and incorporated into the Work during the provision of the Services.

Goods” means the goods (if any) to be provided by Feref to the Client pursuant to a Contract.

Rights” means all or any of copyright, extended or revived copyright, design right, registered design right, patent, performer’s property right, trade mark, database right or any similar right exercisable in any part of the world, including any application for registration of any patent, trade mark, registered design or similar registerable rights in any part of the world.

Services” means the services to be provided by Feref to the Client pursuant to a Contract.

Works” means the product of the Services.

1.2 The headings in these terms and conditions are inserted for clarification only and shall not affect the meaning or interpretation of these terms and conditions.

1.3 Unless otherwise expressly agreed in writing by Feref, these terms and conditions shall govern and be shall be deemed to be incorporated in all Engagement Letters delivered by Feref to the Client or delivered by the Client and accepted by Feref. Acceptance of any Engagement Letter from Feref by the Client shall be deemed to include acceptance that these terms and conditions shall govern the Contract.

1.4 No agent or representative of Feref has any authority to waive or vary any of these terms and conditions on behalf of Feref and any suggested waiver or variation thereof howsoever arising shall be deemed to be excluded unless written and signed by an Authorised Representative on behalf of Feref.

1.5 No stipulation or condition contained in any order, subsequent letter, or by any other means of communication which varies, qualifies, adds or amends these terms, shall be of any effect unless accepted in writing by an Authorised Representative on behalf of Feref

2. PERSONNEL AND CO-OPERATION

2.1 Feref will allocate suitable personnel with appropriate levels of experience and seniority to the provision of the Services. The Client acknowledges and agrees that it may be necessary from time to time for Feref to replace the personnel providing the Services with alternative personnel with similar levels of seniority and experience.

2.2 Where Feref has agreed in an Engagement Letter that certain named individual(s) are to be actively involved in the provision of the Services, if any such individual shall cease to be involved in the provision of the Services (e.g. because he/she shall leave Feref’s employment or for any other reason) Feref will, with the Client’s consent (such consent not to be unreasonably withheld or delayed), appoint a suitable replacement.

2.3 The Client will give Feref clear briefings and ensure that all the facts given in such briefings are accurate. Feref will co-operate fully with the Client and use reasonable care and skill in its provision of the Services. The Client will help Feref do this by making available to Feref all relevant information and co-operating with Feref.

FEES AND EXPENSES

3.1 The Client shall pay Feref a basic fee in respect of the Services, in the amount, in the currency, by the instalments and at the time(s) specified in the Engagement Letter. For the avoidance of doubt, this fee shall be payable in addition to all payments for production. Feref’s charges for services in addition to the Services shall, unless separately agreed, be calculated using the hourly charge out rates shown in the Engagement Letter. In default of any stipulation to the contrary in the Engagement Letter, the currency in which the fees shall be invoiced and paid shall be Pounds Sterling.

3.2 Feref will invoice the Client at cost in respect of the costs incurred by Feref in performing the Services through the purchase of materials and/or the outsourcing of certain of the Services to third party contractors, as detailed in the Engagement Letter or otherwise agreed between the parties in writing.

3.3 The cost to Feref of materials or services purchased overseas or, where the Engagement Letter shall provide for fees and/or expenses to be invoiced in a currency other than Pounds Sterling, in the UK in connection with the provision of the Services may be more or less than the cost anticipated at the date of the Engagement Letter (or the date that Feref obtained the Client’s approval for such costs), as a result of fluctuations in the rate of currency exchange. If so, Feref will charge the Client at the rate of currency exchange in operation on the date Feref pays for the relevant materials or services, which shall be deemed to be the closing mid-point rate in London for that day as subsequently quoted in the next published edition of The Financial Times.

3.4 VAT will be payable in addition to the fees and expenses payable by the Client and itemised separately on Feref’s invoices, where appropriate, at the rate prevailing from time to time.

3.5 Where a surcharge is levied by a supplier against Feref due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to Feref the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.

3.6 If a media owner levies late copy charges against Feref and such charges do not result from the negligent or wilful act or omission of Feref, the Client shall immediately reimburse the amount of such late copy charges to Feref.

3.7 The Client shall pay all monies which are payable by it to Feref without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party.

4. Records and Client inspection rights

4.1 Feref shall maintain appropriate records in respect of all expenditure that is reimbursable by the Client under the Contract.

4.2 Feref will allow the Client by its own personnel or by a suitably qualified independent auditor access to all such records during the term of the Contract and for 12 months afterwards. Any such access shall be on not less than 5 Business Days’ written notice at any time during normal business hours for the purposes of auditing or otherwise inspecting such records provided that in the absence of exceptional circumstances Feref shall not be obliged to allow such access or inspection more than once during any 6 month period.

4.3 Should any inspection of such records by the Client reveal that the Client has been overcharged Feref shall reimburse to the Client the amount of the overcharge within 7 days of receipt of a request to do so.

4.4 The Client and its auditor will ensure that any information obtained in the course of the inspection concerning Feref's business is kept in the strictest confidence and not used for any purpose other than the proper conduct of the inspection.

5. Suppliers: Business Terms and Selection

5.1 Unless otherwise stated in this Agreement, Feref’s contracts with suppliers in respect of the Services shall be made in accordance with standard or individual conditions and contracts. The rights and liabilities as between the Client and Feref shall correspond to those between Feref and the various suppliers under such conditions, including in particular any rights of amendment, omission and cancellation. On the Client’s written request Feref shall supply the Client with the relevant terms and conditions.

5.2 Feref shall use reasonable care and skill in the selection and appointment of suppliers and the agreement of the terms and conditions of such appointment. Should the Client request, Feref will obtain more than one quote for a particular supply and discuss these with the Client before placing an order.

5.3 Feref shall obtain the Client’s consent before commissioning services from any company in which Feref has a financial interest, such consent not to be unreasonably withheld or delayed.

6. Copyright and Other Intellectual Property Rights

6.1 The Rights in all Feref Material vest in Feref unless different arrangements are made in writing.

6.2 Feref shall obtain all usage rights in Existing Material and Commissioned Material as are deemed necessary by Feref at the time such material is selected or obtained.

6.3 Upon the Client’s request after completion and delivery of the Works, Feref shall assign to the Client with full title guarantee, such of the Rights in Feref Material, Commissioned Material and Existing Material as may be owned by Feref and capable of assignment together with the right to sue for damages for past infringement provided all obligations of the Client arising from the Contract (including those relating to payment and the period of notice) have been met. Feref shall also waive any Moral Rights in Feref Material and Commissioned Material. Such assignment and waiver shall be subject to Clauses 6.4 to 6.7 below. The Performer’s Property Rights in Commissioned Material, if any, shall be assigned subject to any repeat fees previously agreed with the approval of the Client and any legally unwaivable right such as the right to equitable remuneration.

6.4 The copyright in television, cinema and radio commercials passes to Feref under standard forms of agreement, including but not limited to the Agreement for the Production of Television and Cinema Commercials approved by the Advertising Producers Association (formerly the Advertising Film and Video Producers Association), the Incorporated Society of British Advertisers, and the Institute of Practitioners in Advertising. As these place restrictions on future usage, assignments of Rights to the Client will be subject to the rights of third parties and will be made only by special arrangement on terms indemnifying Feref against subsequent claims by third parties.

6.5 The Client shall notify Feref of any intended use of the Works after the term of the Contract and will pay Feref a fee equivalent to 3% of the gross amounts payable for the media in which the Works are used. Such sums shall be paid to Feref within days after the due dates for payment in respect of the media in which such Works are used.

6.6 The Client shall not at any time before or after the end of the term of the Contract use (or license the use) of any cartoon figure, model or other character whose visual appearance has been created exclusively for the Client by Feref or by Feref's subcontractors except:

(a) in the Client’s above or below the line advertising or in the packaging of the Client’s products; or

(b) as expressly agreed in writing between the Client and Feref.

Feref's consent for any other use of such characters shall not be unreasonably withheld, but where income is to be generated by, for example, activities in the nature of character merchandising, Feref’s consent will be conditional on prior agreement between the parties and where appropriate with subcontractors, on reasonable fees or royalties.

6.7 Notwithstanding any of the above Feref shall:

(a) be able during and after the term of the Contract to use the Works (after first publication, broadcast or transmission on behalf of the Client) for the purpose of promoting its own business by means including but not limited to a show reel of Feref’s commercials, on Feref’s own web site and for purposes associated with the entry and conduct of advertising industry awards schemes; and

(b) retain the copyright in any material contained in any presentation made in competition with any other agency in the event of Feref’s presentation being unsuccessful.

7. Ownership and Custody of Material

7.1 All Works prepared by Feref and paid for by the Client will be the Client's property but the Client will not necessarily own the copyright(s) or other Rights in it. For the avoidance of doubt, the Client shall not own the copyright in ‘stock’ photographs obtained from news or photographic agencies for particular advertisements or to photographic or film negatives or to any other medium in which this material may be supplied.

7.2 Feref will keep in its care all Client Material. Feref will mark or otherwise identify all Client Material as being the property of the Client and will be responsible for its safekeeping. Feref will not, however, be obliged to recover typesetting, colour separations, printing plates etc. and the like from media and suppliers once Feref has parted with them.

7.3 Feref shall not be entitled to destroy Client Material without the Client’s prior written consent. Feref shall be entitled to return all Client Material to the Client by delivery to the Client's offices at the address shown in the Engagement Letter by giving the Client 30 days written notice that it no longer requires the Client Material.

8. Insurance

8.1 Without prejudice to its obligations under this Agreement, Feref shall effect and maintain with reputable insurers such policy or policies of insurance as may be necessary to cover Feref’s obligations and liabilities under the Contract, including but not limited to:

(a) Transmission and Production Insurance against transmission and production risks for all advertising undertaken for television. Unless the parties agree otherwise in writing the premium for such insurance shall be included in Feref's production charges;

(b) Insurance against loss or damage to the Client Material and items such as negatives, video tapes and software coming into existence for the purpose of producing the Works (the “Items”) while in Feref’s possession and regardless of whether ownership of the Items has passed to the Client;

(c) Professional Indemnity Insurance with a limit of not less than £500,000 per annum.

Upon the Client’s reasonable request, Feref shall provide the Client with all such documentation as is necessary to prove Feref’s continuing compliance with its obligations to insure under this sub-clause.

8.2 The Client acknowledges and agrees that nothing in this Agreement shall place any obligation upon Feref to obtain insurance cover in relation to risks arising from terrorism or military action and Feref shall not be liable to the Client under this Agreement for any loss of any kind arising from terrorism or military action.

9. Confidential Information

9.1 The parties acknowledge a duty not during or after the term of the Contract to disclose without the other’s prior written permission any confidential information either concerning the other’s business, its business plans, customers or associated companies or resulting from studies or surveys commissioned and paid for by the Client.

9.2 In particular during and after the Term Feref acknowledges its responsibility to treat in complete confidence all the marketing and sales information and statistics relating to the Client’s business with which the Client may supply Feref in the course of any work for the Client.

9.3 From now on in this Clause 9 “Information” will be used to describe the categories of information referred to in Clauses 9.1 and 9.2.

9.4 Feref shall impose obligations in terms equivalent to those in Clauses 9.1 and 9.2 on its own personnel. Upon written request by the Client, Feref shall also obtain written assurances from any third parties to whom Information has to be disclosed in order to enable Feref to carry out its obligations under this Agreement.

9.5 The Client acknowledges and agrees that any identifiable and original idea or concept presented by Feref in relation to any promotion or advertising campaign invented or developed by Feref shall be acknowledged as being available only for such promotion or campaign and shall not be used for any other purposes whatsoever without Feref’s express prior written consent. 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 Feref’s express prior written consent.

9.6 For the avoidance of doubt, the restrictions in this Clause 9 shall not prevent:

(a) the disclosure or use of Information in the proper performance of Feref's duties;

(b) the disclosure of Information if required by law;

(c) the disclosure of Information which has come into the public domain otherwise than through unauthorised disclosure;

(d) the disclosure of Information that was rightfully and without restriction on disclosure or use known to the relevant recipient prior to the date of disclosure by the other.

9.7 The Client acknowledges that nothing in this Agreement shall affect Feref's right to use as it sees fit any general marketing or advertising intelligence gained by Feref in the course of its appointment.

11. TERMINATION

11.1 In the event that a party (the “defaulting party”) shall be in breach of any term of a Contract then other party shall have the right (without prejudice to any other rights and remedies) to require by notice in writing to the defaulting party that such default be rectified and if the defaulting party shall fail to rectify such default to the reasonable satisfaction of the other party within 10 Business Days of such notice then the other party shall be entitled forthwith to terminate the Contract by the service of a further notice in writing upon the defaulting party provided always that:

(a) if the relevant breach shall not be capable of rectification within the said period of 10 Business Days or at all then the Contract may be terminated forthwith by the other party by the service of a notice in writing upon the defaulting party;

(b) if the other party shall be Feref then (without prejudice to its right to serve notice(s) in accordance with the foregoing at any time thereafter) Feref shall be entitled to:

(i) suspend or withhold the delivery of materials related to the Works and/or the provision of Services so long as the default continues; and/or

(ii) to serve notice in writing on the Client that unless all sums due under the Contract and any other Contracts with the Client are paid forthwith it will cancel the Contract and any other Contract with the Client

11.2 In the event that a defaulting party shall commit or suffer an Event of Default or the other party reasonably believes that an Event of Default or breach is about to occur in relation to the defaulting party and notifies the defaulting party accordingly, then other party shall have the right (without prejudice to any other rights and remedies) to terminate all Contracts forthwith by notice in writing to the defaulting party.

12. GENERAL

12.1 Each party shall ensure that any mailing list or customer database supplied to the other party shall comply with the requirements of all legislation in force from time to time including, without limitation, the Data Protection Act 1998, and that each party shall comply with the relevant obligations of the Data Protection Act 1998.

12.2 The failure of either party to enforce or to exercise at any time or for any period any term of or any right pursuant to this Agreement shall not be construed as a waiver of any such term or right and shall in no way affect that party’s right later to enforce or exercise it.

12.3 Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under a Contract caused by circumstances beyond its reasonable control (including a labour dispute between a third party and its employees) (a “Force Majeure Event”). The party claiming the Force Majeure Event shall promptly notify the other party in writing of its reasons for the delay or stoppage and its likely duration and shall take all reasonable steps to overcome the delay or stoppage. If the party claiming the Force Majeure Event has complied with the foregoing, its performance under the Contract shall be suspended for the period that the Force Majeure Event continues and the party will have an extension of time for performance equal to such period. As regards the delay or stoppage arising from the Force Majeure Event:

(a) any costs arising from such delay or stoppage shall be borne by the party incurring those costs;

(b) the party claiming the Force Majeure Event shall take all reasonable steps necessary to bring that event to a close or to find a solution by which its obligations under the Contract may be performed despite the Force Majeure Event;

(c) if the Force Majeure Event continues for more than 30 consecutive days, either party may terminate the Contract with immediate effect on giving written notice to the other party and neither shall be liable to the other for such termination.

12.4 The parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during or for a period of six months from the end of the term of the Contract solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any key executive of the other party who has been involved to any material extent in the provision of the Services at any time during the last 12 months of the term of the Contract .

12.5 If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

12.6 Neither party shall assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it without the prior written consent of the other party, such consent not to be unreasonably conditioned, withheld or delayed.

12.7 A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

13. Notices

Any notice, invoice or other communication which either party is required by this Agreement to serve on the other party shall be sufficiently served if sent to Feref at its address specified in clause 1 or in the case of the Client at its address specified in the relevant Engagement Letter (or such other address as is notified to the other party in writing) as follows:

13.1 by hand;

13.2 by registered or first class post or recorded delivery; or

13.3 by facsimile transmission confirmed by registered or first class post or recorded delivery.

Notices sent by registered post or recorded delivery shall be deemed to be served three (3) Business Days following the day of posting. Notices sent by facsimile transmission shall be deemed to be served on the day of transmission if transmitted before 4.00 p.m. on a Business Day, but otherwise on the next following Business Day. In all other cases, notices are deemed to be served on the day when they are actually received.

14. INVALIDITY AND JURISDICTION

14.1 The invalidity or unenforceability for any reason of any part of these terms and conditions shall not prejudice or affect the validity or enforceability of the remainder.

14.2 All Contracts shall be deemed to have been made in England and their construction validity and performance shall be governed by English law.

14.3 The Client and Feref irrevocably agree to submit to the exclusive jurisdiction of the courts of England and Wales over any claim, dispute or matter arising under or in connection with these terms and conditions and all Orders and Contracts.

I hereby acknowledge and agree the above terms and conditions

Signed: ________________________ Date: ________________

Print Name:_______________________

Duly authorised for and on behalf of:

________________________________________________

(Print name of Client)