Terms and Conditions

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1. Interpretation

1.1 Definitions:

"Audio Recording"
means any audio recordings made by the Customer using the Studio and/or Equipment.

"Business Day"
a day other than a Saturday, Sunday or public holiday in England.

"Charges"
the charges payable by the Customer for the supply of the Services by Forever Audio.

"Company"
Forever Audio Limited with company number 05439179 (“Forever Audio”)

"Forever Audio's address"
114-115 Tottenham Court Road, London, W1T 5AH

"Conditions"
these terms and conditions set out in clause 1 (Interpretation to clause 14 (General) (inclusive).

"Contract"
this contract between the Customer and Forever Audio for the supply of the Services in accordance with these Conditions and any Schedules.

"Customer Materials"
all materials, recordings, documents, equipment, scripts, videos, imagery, drawings, information, and data supplied by the Customer to Forever Audio.

"Data Protection Legislation"
means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

"Deliverables"
all documents, products and materials developed by Forever Audio or its agents, subcontractors and personnel as part of or in relation to the Services in any form.

"Equipment"
means Forever Audio's equipment.

"Intellectual Property Rights"
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

"Services"
the services, including without limitation any Deliverables, to be provided by Forever Audio.

"Services Start Date"
the day on which Forever Audio is to start provision of the Services.

"Studio"
means the recording studio, the premises and its equipment.

"Studio Hire Period"
means the period of time agreed by Forever Audio and the Customer.

"Studio Hire Services"
means any services provided in accordance with Part 4 of Schedule 1 (Services).

1.2 Interpretation:

1.2.1 A reference to legislation or a legislative provision
(a) is a reference to it as amended, extended or re-enacted from time to time; and
(b) shall include all subordinate legislation made from time to time under that legislation
or legislative provision.

1.2.2 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.2.3 A reference to writing or written includes email.

2. Commencement and Term

The Contract shall commence on the Services Start Date and shall continue, unless terminated in accordance with its terms, until all of the Services have been provided.

3. Supply of Services

3.1 Forever Audio shall supply the Services to the Customer in accordance with the Contract.

3.2 In supplying the Services, Forever Audio shall:

3.2.1 perform the Services with reasonable care and skill;

3.2.2 use reasonable endeavours to perform the Services as agreed with the Customer;

3.2.3 comply with all applicable laws, statutes, regulations and codes from time to time in force provided that Forever Audio shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract; and

3.2.4 take reasonable care of all Customer Materials in its possession and make them available for
collection by the Customer on reasonable notice and request, always provided that Forever
Audio may destroy the Customer Materials if the Customer fails to collect the Customer
Materials within a reasonable period after the Services have been provided.

4. Customer's obligations

4.1 The Customer shall:

4.1.1 co-operate with Forever Audio in all matters relating to the Services;

4.1.2 provide, in a timely manner, such information as Forever Audio may reasonably require, and ensure that it is accurate and complete in all material respects;

4.1.3 provide Forever Audio with all other input reasonably requested by Forever Audio;

4.1.4 ensure that its employees, personnel and contractors observe all health and safety and security requirements that apply at any of Forever Audio's premises;

4.1.5 comply with, and ensure that its employees, personnel and contractors comply with, Forever Audio's reasonable instructions and any Forever Audio policies which are notified to the Customer when the Customer is at Forever Audio's premises; and

4.1.6 where possible, provide any digital files to Forever Audio prior to any Studio Hire Period or recording session so that Forever Audio can scan such files for viruses and other malicious software.

4.2 If Forever Audio's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Forever Audio shall:

4.2.1 not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;

4.2.2 be entitled to payment of the Charges despite any such prevention or delay; and

4.2.3 be entitled to recover any additional costs, charges or losses Forever Audio sustains or incurs that arise directly or indirectly from such prevention or delay.

4.3 Where the Customer’s employees, personnel and/or contractors are on Forever Audio’s premises, the Customer will be responsible for:

4.3.1 any loss or damage to any Equipment or Forever Audio’s premises caused by any act or omission of the Customer or the Customer’s employees, personnel and/or contractors; and

4.3.2 for the cost of the hire of any Customer's equipment.

4.4 The Customer will comply with all applicable health and safety legislation, including but not limited to the Control of Noise at Work Regulations 2005.

4.5 be responsible for any and all loss or damage to the Customer’s Equipment which shall be at the sole risk of the Customer

5. Data protection

5.1 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation. In this clause 5 "controller", "data subject", "personal data", and "processing" shall have the meaning given to them in the Data Protection Legislation.

5.2 Each party shall:

5.2.1 ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the personal data to the other party;

5.2.2 give full information to any data subject whose personal data may be processed under this Contract of the nature of such processing; and

5.2.3 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

5.3 Each party shall provide the other party reasonable assistance in complying with all applicable requirements of the Data Protection Legislation and in particular:

5.3.1 provide the other party with reasonable assistance in complying with any data subject rights request;

5.3.2 notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation; and

5.3.3 at the written request of the other party, delete or return the other party's personal data and copies unless required by law to store that personal data.

6. Intellectual property

6.1 In relation to the Deliverables:

6.1.1 Forever Audio and/or its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, unless otherwise agreed in writing, excluding the Customer Materials;

6.1.2 Subject to the payment of the Charges in accordance with clause 8 (Charges), Forever Audio grants the Customer a fully paid-up, worldwide, non-exclusive, non-transferrable, perpetual licence to use the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and

6.1.3 the Customer may sub-license the rights granted in clause 6.1.2 to the extent necessary to receive the full benefit of the Services.

6.2 The Customer will obtain waivers of all moral rights in the Deliverables and/or the Customer Materials to which any individual the Customer employees or who is a consultant to the Customer, is now or may be at any future time entitled under Chapter III of Part II or Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.

6.3 In relation to the Customer Materials, the Customer:

6.4 and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and

6.5 grants Forever Audio a fully paid-up, non-exclusive, royalty-free, transferable, sublicensable, perpetual licence to copy, modify and use the Customer Materials in order to provide the agreed Services.

6.6 The Customer shall indemnify Forever Audio on demand in full against any sums awarded by a court against Forever Audio arising out of or in connection with any claim brought against Forever Audio for infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by Forever Audio.

7. Back-Ups

7.1 Subject to clause 7.2, where the Services include the provision of Audio Recordings, Forever Audio will take back-ups of those Audio Recordings which will be stored for three years from the date of recording (the "Retention Period").

7.2 Subject to clause 9.3 (No limit of liability), Forever Audio will use its best endeavours to ensure the security of such back-ups, but will not be liable for any loss, corruption or damage to those Audio Recordings.

7.3 Forever Audio will delete the Audio Recordings following the expiry of the Retention Period, unless the parties enter into a separate agreement (at the Customer's cost) for either:

7.3.1 an extension of the Retention Period; or

7.3.2 the transfer of the Audio Recordings onto an external hard drive for the Customer to collect.

7.4 If the Customer becomes aware of any defect in, or loss of or damage to any of the Audio Recordings, the Customer will notify Forever Audio. Forever Audio will use its reasonable endeavours to correct any such defect and/or replace such lost or damaged Audio Recording.

8. Charges and payment

8.1 In consideration for the provision of the Services, the Customer shall pay Forever Audio the Charges in accordance with this clause 8.

8.2 Where Forever Audio has provided the Customer with a credit for Studio Hire Services in accordance with clause 11.6 (Forever Audio Cancellations), that credit will be deducted from the Charges.

8.3 All amounts payable by the Customer exclude amounts in respect of value added tax (VAT),
which the Customer shall be liable to pay to Forever Audio at the prevailing rate (if
applicable), subject to receipt of a valid VAT invoice.

8.4 Forever Audio shall submit invoices for the Charges plus VAT if applicable to the Customer. Each invoice shall include all reasonable supporting information required by the Customer. If Forever Audio has provided the Customer with a credit for Studio Hire Services, that credit shall be shown on the relevant invoice.

8.5 Subject to clause 8.6, the Customer shall pay each invoice due and submitted to it by Forever Audio, within 30 days of receipt, to a bank account nominated in writing by Forever Audio.

8.6 Where Forever Audio is providing the Customer with Media Planning and Buying Services, the Customer shall pay each invoice due and submitted to it by Forever Audio, within 5 days of receipt, to a bank account nominated in writing by Forever Audio.

8.7 If the Customer fails to make any payment due to Forever Audio under the Contract by the due date for payment, then, without limiting Forever Audio's remedies under clause 10 (Termination):

8.7.1 the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and

8.7.2 Forever Audio may suspend all Services until payment has been made in full.

8.8 The Customer shall pay all amounts due under this Contract in full without set-off, counterclaim, deduction (including bank fees) or withholding (unless the deduction or withholding is required by law). If any deduction or withholding is required by law the Customer shall simultaneously pay to Forever Audio such sum as will after the deduction or withholding has been made, leave Forever Audio with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.

9. Limitation of liability

9.1 References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

9.2 Nothing in this clause 9 shall limit the Customer's:

9.2.1 payment obligations under the Contract; and

9.2.2 liability under clause 6.6 (IPR Indemnity).

9.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:

9.3.1 death or personal injury caused by negligence; and 9.3.2 fraud or fraudulent misrepresentation.

9.4 Subject to clause 9.2 (Unlimited Customer liability) and clause 9.3 (Liabilities which cannot legally be limited) Forever Audio's total liability to the Customer shall not exceed an amount equal to the Charges paid and/or payable by the Customer under the Contract.

9.5 Subject to clause 9.2 (Unlimited Customer liability) and clause 9.3 (Liabilities which cannot legally be limited), neither party shall be liable to the other for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or corruption of software, data or information, loss or damage to goodwill and indirect or consequential loss.

10. Termination

10.1 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:

10.1.1 the other party commits a material breach of any term of the Contract which is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

10.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

10.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

10.1.4 the other party's financial position deteriorates to such an extent that in the terminating party's reasonable opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

10.2 Without affecting any other right or remedy available to it, Forever Audio may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

10.3 On termination of the Contract for whatever reason:

10.3.1 the Customer shall immediately pay to Forever Audio all of Forever Audio's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Forever Audio may submit an invoice, which shall be payable immediately on receipt;

10.3.2 any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and

10.3.3 termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

11. Studio Hire

11.1 Where the Services include Studio Hire Services, Forever Audio grants the Customer a right for the Studio Hire Period to enter and use the Studio for the purposes of using the Studio and the Equipment in accordance with this Contract.

11.2 The Customer shall have the right to enter and use the Studio as a licensee only and no relationship of a landlord and tenant is created between Forever Audio and Customer by this Contract.

11.3 Forever Audio retains control, possession and management of the Studio and the Customer has no right to exclude Forever Audio from the Studio. Forever Audio reserves the right to enter the Studio at all times during the Studio Hire Period, including to supply the Services. If Forever Audio reasonably considers that the Customer has breached any term of this Agreement, Forever Audio will have the right to ask the Customer and its employees, personnel and/or contractors to leave the Studio and Forever Audio’s premises.

11.4 The Customer agrees and undertakes:

11.4.1 not to use the Studio other than for audio production purposes;

11.4.2 to only permit people directly involved in the Audio production to enter the Studio and only during the Studio Hire Period;

11.4.3 not to do or permit to be done anything in the Studio which is illegal or which may be or
become a nuisance (whether actionable or not), annoyance, inconvenience or disturbance to Forever Audio or to any other customers of Forever Audio, or any owner or occupier of
neighbouring property;

11.4.4 to comply (and ensure that its staff and agents comply) with the terms of this Contract and any instructions or notices from Forever Audio;

11.4.5 not to cause or permit to be caused any damage to the Studio, including any furnishings, Equipment or fixtures at the Studio;

11.4.6 not to smoke or permit smoking (including e-cigarettes) anywhere in the Studio or its vicinity;

11.4.7 not to alter, move or interfere with any lighting, heating, power, cabling or other electrical appliances or Equipment at the Studio, electronic appliances or Equipment without the prior written consent of Forever Audio;

11.4.8 to use any Equipment provided by Forever Audio for its proper purpose and in accordance with any instructions provided by Forever Audio regarding its use; and

11.4.9 to leave the Studio promptly at the end of the Studio Hire Period and to leave the Studio in clean and tidy condition and to remove any Customer equipment from the Studio at the end of the Studio Hire Period.

11.5 The Customer acknowledges that it shall be responsible for:

11.5.1 ensuring the suitability of the Studio for the Customer's purpose;

11.5.2 ensuring that the Customer's equipment shall be compatible with the Studio and any Equipment;

11.5.3 the technical quality of any recording engineered by personnel working for the Customer; and

11.5.4 any problems or damage caused by use of any media recorded by the Customer (including any damage caused by any viruses or other malicious computer programs).

11.6 If for any reason the Studio is unavailable during the Studio Hire Period and/or there is a failure or breakdown in the Equipment, Forever Audio will at its sole discretion and as the Customer’s sole remedy:

11.6.1 rearrange the Studio Hire Period;

11.6.2 provide the Customer with a credit to use for future Studio Hire Services; or

11.6.3 refund the relevant Charges for that Studio Hire Period.

12. Audio Delivery

12.1 Where the Services include any material for broadcast on TV, radio and/or cinema, the Customer shall provide to Forever Audio, at soon as possible prior to the final mix session, the most up to date and comprehensive delivery specification sheet (“Spec Sheet”) from the relevant broadcaster and/or broadcast distribution company hired by the Customer. The Spec Sheet must at least in part relate to the Customer’s specific sound requirements, including audio output levels, alternate mixes required (such as M&E tracks) and anything other technical requirements which are required and which are specific to the final master file delivery formats.

12.2 Forever Audio will use its reasonable endeavours to ensure that it complies with the Spec Sheet. The Customer acknowledges that there are several stages in the distribution chain after the Audio Recording leaves Forever Audio which can affect the Audio Recording, and therefore Forever Audio cannot be held responsible for any subsequent changes to the audio formats, levels or other specs that may be applied by any third party.

12.3 If no specific audio specification requirements are provided, the Forever Audio will use reasonable endeavours to supply:

12.3.1 broadcast TV and cinema audio mixed to UK TV broadcast standards of R128 ruling -23 LUFS+/-1 LU; and

12.3.2 radio audio mixed to 6PPM and digital content -0.2dB; or

12.3.3 such other standards notified to the Customer by Forever Audio from time to time.

13. Studio Hire Cancellation

13.1 The Customer may cancel or rearrange any Studio Hire Period by giving Forever Audio prior written notice, provided that where the Customer cancels or rearranges the Studio Hire Period:

13.1.1 with less than 72 hours’ notice, but more than 48 hours’ notice, the Customer will pay Forever Audio an amount equal to 25% of the Charges for that Studio Hire Period;

13.1.2 with 48 hours’ notice or less, but more than 24 hours’ notice, the Customer will pay Forever Audio an amount equal to 50% of the Charges for that Studio Hire Period; and

13.1.3 with 24 hours’ notice or less the Customer will pay Forever Audio an amount equal to 100% of the Charges for that Studio Hire Period.

14. General

14.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly.

14.2 Assignment and other dealings.

14.2.1 The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without Forever Audio's prior written consent.

14.2.2 Forever Audio may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

14.3 Confidentiality

14.3.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 14.3.2. For the purposes of this clause 14.3, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

14.3.2 Each party may disclose the other party's confidential information:

(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 14.3; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

14.3.3 Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Contract.

14.4 Entire agreement.

14.4.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

14.4.2 Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

14.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14.6 Waiver.

14.6.1 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

14.6.2 A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

14.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 14.7 shall not affect the validity and enforceability of the rest of the Contract.

14.8 Notices.

14.8.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(b) sent by email to the address specified by Forever Audio

14.8.2 Any notice or communication shall be deemed to have been received:

(a) if delivered by hand, at the time the notice is left at the proper address;

(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 14.8.2(c), business hours means 9.00am to 6.00pm Monday to Friday on Business Day.

14.8.3 This clause 14.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

14.9 Third party rights.

14.9.1 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

14.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.

14.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

Schedule 1 Services

Part 1 Creative Services

The Creative Services include:

advertising creative & production;
audio creative for commercials;
foreign language creative services; and
events & workshops (Training on audio, can be in-studio or client site).

Part 2 Digital Services

The Digital Services include:

creative design & development of digital and audio campaigns and experiences
creative & development of voice assistant experiences (Alexa / Siri)
UI/UX design;
web development; and
API integration.

Part 3 Media Planning and Buying Services

The Media Planning and Buying Services include:

planning audio campaigns (figures for audience reach will be estimated);
negotiating airtime costs with contractors; and
buying advertising time / space on the requested platforms.

Part 4 Audio Post Production, Recording and Studio Hire

The Studio Production and Hire Services include:

access to the Studio;
use of the Equipment;
dubbing
audio post production;
sound design; and
voice recording.

Part 5 Music

audio branding;
bespoke composition;
commercial licensing and synchronisation; and
music library (internal).

Part 6 Audiobook Services

The Audiobook Services include:

audiobook production, including recording, editing and delivery; and
casting services.