1. Existence of Terms & Conditions (T&Cs)
1.1. The T&Cs shall prevail at all times over all other terms and conditions which the Freelance may purport to apply and to the extent any obligations hereunder have already been performed by either party, then such obligations shall for all purposes be deemed to have been performed in accordance with and subject to the provisions of the T&C.
1.2. The Freelance undertakes to provide the Services in accordance with the T&C.
2. Time of the Essence
2.1 Timely provision of the Services is of the essence of the T&C and the Freelance shall notify OMG Media (London) immediately the Freelance becomes aware of any likely delay in such provision.
3. Good Faith/Outside Activities/Publicity
4.1 The Freelance shall act in good faith towards OMG Media (London) and shall not bring OMG Media (London) into disrepute nor, without the prior consent of OMG Media (London), make any reference to OMG Media (London) in any advertising, promotional or published material nor speak in public about OMG Media (London) or its affairs.
4.1. In consideration of the Services provided under the T&C, OMG Media (London) shall pay to the Freelance the Fee together with any applicable VAT subject to and in accordance with this Clause 4.
4.2. The Freelance shall submit a valid VAT invoice for the whole or any part of the Fee to OMG Media (London) at the address specified in the Purchase Documentation quoting the relevant Purchase Documentation number or Project name. OMG Media (London) shall usually pay such sums as are due within 45 days of the invoice receipt date in accordance with this clause. However, should the client terms run outside of this timeframe this may be increased to 60 days.
Please check your day rate with OMG Media BEFORE submitting your invoice.
4.3. OMG Media (London) reserves the right to withhold payment to the extent that the Services have not been provided in accordance with these T&C and shall notify the Freelance accordingly giving reasons for such withholding. OMG Media (London) shall only be entitled to withhold that amount indicated as in dispute. If any sum of money is recoverable from or payable by the Freelance to OMG Media (London) under this or any other T&C with the Freelance, the same may be deducted from any sum then due or which at any time thereafter may become due to the Freelance under this or any other T&C with the Freelance. Exercise by OMG Media (London) of its rights under this Clause shall be without prejudice to any other rights or remedies available to it under the T&C or otherwise, at law or in equity.
4.4. Other than where specifically agreed in these T&C, OMG Media (London) shall not be obliged to pay any time or materials charges or expenses to the Freelance in addition to the Fee in respect of costs which the Freelance may have incurred in the performance of the T&C unless they have been agreed prior to the work being undertaken. Any overtime rates or cancellation fees need to be agreed prior to submitting the invoice.
4.5. Where the Freelance is VAT registered the Freelance shall recover VAT on any expenditure incurred.
4.6. OMG Media (London) may request that in certain circumstances the Freelance act as a buying and/or paying agent of OMG Media (London) for the purchase of goods, facilities or services on OMG Media (London) Limited’s behalf. Any such occasion and the budgetary limits thereof must be agreed in writing between OMG Media (London) and the Freelance in advance of any expenditure being incurred. Where VAT is payable on such occasion the Freelance shall obtain a VAT invoice made out to OMG Media (London) Limited. Where required, reimbursement to the Freelance shall only be made on production and approval of an appropriate invoice evidencing such expenditure.
The Freelance undertakes warrants and represents that :
5.1. except as otherwise agreed prior to performance of the T&C, they shall obtain for OMG Media (London) all necessary consents, permissions and/or clearances of third party rights (including IPR’s) with respect to the Products and Services;
5.2. they shall not, by reason of any other T&C or engagement or otherwise, be precluded from entering into and fulfilling their obligations under the T&C, throughout the T&C Period;
5.3. they are a self-employed individual and as such are not an employee of OMG Media (London) Limited. It acknowledges that OMG Media (London) shall have no liability to them as employer or otherwise in respect of any health or medical insurance or expenses nor in respect of any loss of income or other loss or expense arising due to illness injury or damage sustained in the course of performing the T&C unless caused by the negligence or default of OMG Media (London) Limited.
5.4. they are registered with the Inland Revenue as self employed, and are taxable under Schedule D of the Income and Corporation Taxes Act 1988 as amended, and agrees to indemnify OMG Media (London) against any claims by the Inland Revenue resulting from a breach of this warranty.
5.5. they shall be competent to fulfil their obligations under the T&C (which includes having relevant experience, training and/or qualifications), and shall use due care, skill and diligence as would reasonably be expected of a competent provider of the Products and Services, comply with all relevant professional standards and/or requirements (if applicable) perform the T&C in a timely and professional manner and hold any licence, permit and/or certificate required by law for the performance of the T&C.
5.6. they shall attend at such places (whether in the United Kingdom or overseas) and at such times as is necessary for the performance of their obligations under the T&C.
5.7. all Product(s) and/or Services are fit for the purpose for which they are supplied and where relevant are of satisfactory quality, good construction, suitable and sound material and adequate strength and have been tested prior to delivery.
5.8. they and the Product(s) and Services shall comply with all current relevant laws and regulations and they shall use all reasonable efforts to comply with all relevant published codes of conduct.
5.9. any equipment/materials being provided by them in the performance of the T&C and all Product(s) shall where relevant possess the capability to record or process and/or utilise data in accordance with the provisions of the British Standards Institute requirements for Year 2000 compliance set out in DISC-PD 2000-1:1998.
5.10. at their own expense they shall ensure that the functionality of Product(s) will not be prejudiced by any changes caused by the introduction within any EU member country including the United Kingdom or any of its constituent parts (hereinafter “the Introducing Country”) of European Monetary Union (“EMU”) whether or not (i) the Euro is introduced within the Introducing Country as a result of EMU or (ii) the Euro becomes legal tender within the Introducing Country. In particular Product(s) shall, if appropriate, be able to recognise the Euro and if necessary convert its value into UK Pounds Sterling at the then current exchange rate.
5.11 they and any individual, agent or sub-contractor engaged by the Freelance to assist in providing the Product(s) and/or Services are legally entitled to work in the United Kingdom and, without prejudice to the foregoing, that the Freelance has not breached Section 8(1) of the Asylum and Immigration Act 1996 as amended by the Nationality, Immigration and Asylum Act 2002.
6. Replacement of Freelance
6.1 Where the Freelance becomes unable for whatsoever reason to fulfil their obligations under the T&C they shall promptly notify OMG Media (London) and as promptly as is reasonably practicable provide a suitable replacement(s) acceptable to OMG Media (London) Limited. Notwithstanding the foregoing where the Freelance is unable to fulfil their obligations under the T&C, OMG Media (London) shall have the right to terminate the T&C forthwith pursuant to Clause 16.
7. Health/Safety/Fire and Environmental Requirements
7.1. The Freelance shall comply with all current relevant Safety Requirements including but not limited to those issued by the Health & Safety Commission and Executive and the Home Office.
7.2. OMG Media (London) and the Freelance may agree Safety Requirements in addition to, or different from, those specified in Clause 7.1.
7.3. OMG Media (London) shall notify the Freelance of risks to health and safety (including fire) which are reasonably foreseeable to OMG Media (London) and which may affect the Freelance or OMG Media (London) arising out of or in any way connected with the activities of OMG Media (London) in connection with the T&C, and the Freelance shall have due regard to these.
7.4. Without prejudice to its obligations under Clause 7.1 the Freelance shall :
7.4.1. upon the request at any time of OMG Media (London) Limited, submit to, and fully co-operate with, any safety vetting process required by OMG Media (London) and provide a written statement of the Freelance’s own Safety Requirements;
7.4.2. assess all reasonably foreseeable risks to health and safety (including fire) that may affect OMG Media (London) or any third party arising out of or in any way connected with the performance of the T&C, and provide a copy of such assessment to OMG Media (London) upon request, and (including without limitation compliance with the requirements of any fire certificate that may affect the supply of the Services hereunder) promptly take all reasonable steps to eliminate or adequately control such risks and shall notify and co-operate with OMG Media (London) accordingly;
7.4.3. fully co-operate with OMG Media (London) and any others as necessary to ensure that all reasonably foreseeable risks to health and safety (including fire) are eliminated or adequately controlled;
7.4.4. consult with OMG Media (London) Limited, comply with the procedures to be followed and take all reasonable steps in the event of serious and imminent danger to any person(s) arising out of or in any way connected with the performance of the T&C.
7.4.5. upon request promptly provide OMG Media (London) with a copy of any risk assessment carried out pursuant to Clause 7.4.2.
8. Technical Standards
8.1. The Freelance shall comply with all current relevant:
8.1.1. national and/or international technical standards and procedures; and
8.1.2. OMG Media (London) technical standards and procedures details
9.1. The Freelance shall be responsible for the care, control, security, insurance and maintenance of any equipment and materials used or provided by the Freelance or any person connected with the Freelance, to perform the T&C.
9.2. OMG Media (London) may provide a storage area for any such equipment/materials but is under no obligation to do so. The Freelance shall ensure that any such storage area is fit for the intended purpose and it is used in a suitable, careful and secure manner at the Freelance’s own risk and expense and OMG Media (London) accepts no liability therefore. OMG Media (London) reserves the right to reclaim the storage area upon notification.
9.3. The Freelance shall not use any OMG Media (London) equipment/materials without the prior consent of OMG Media (London) and shall where relevant be responsible for the care, control, security of such materials and equipment which they use until such time as such use ceases and the equipment/materials are returned to OMG Media (London) Limited.
9.4. The Freelance shall upon the request of OMG Media (London) grant OMG Media (London) such access to its premises or such other premises as OMG Media (London) may reasonably require for inspection of any Product(s) and/or OMG Media (London) equipment/materials provided under the T&C, or for any other reason connected with the performance of the T&C.
10. Delivery of Product(s)
10.1. The Freelance shall ensure that any Product(s) is kept in a suitable, and secure manner at the Freelance’s own risk and expense until the whole or any part thereof is either delivered to OMG Media (London) at the Freelance’s own risk and expense or collected by OMG Media (London) at OMG Media (London) Limited’s own risk and expense from the point of collection in accordance with the delivery instructions specified in the Purchase Documentation. The Freelance shall ensure that the Product(s) is packed in such a manner as to reach OMG Media (London) in good condition, clearly labelled in accordance with the delivery instructions and accompanied by delivery notes specifying the quantity and type thereof and the relevant Purchase Documentation number.
10.2. Subject to Clause 10.1, where the T&C consists directly or indirectly of the sale of a Product(s) ownership thereof shall vest in OMG Media (London) absolutely at such time as the either OMG Media takes physical possession, or makes payment (whether in full or in part) for the Product(s), whichever is the first to occur.
10.3. Where any Product(s) is found by OMG Media (London) Limited, upon delivery or collection or subsequently, not to conform with the T&C, OMG Media (London) may accept or reject the whole or any part thereof and if rejected without prejudice to any other remedy available to OMG Media (London) Limited, may return the Product(s) to the Freelance at the Freelance’s own risk and expense and promptly recover any sums paid for the rejected part.
11.1. Nothing in the T&C excludes either party’s liability for death or personal injury caused by that party’s negligence or wilful default.
11.2. The Freelance shall arrange and maintain adequate insurance of at least the full value of any such Product(s) in relation to loss or damage of any Product(s) provided under the T&C where risk has not yet passed to OMG Media (London) pursuant to Clause 10.
11.3. The Freelance shall produce to OMG Media (London) Limited, on demand, copies of the insurance policies maintained in accordance with the terms of this T&C, and receipts for premiums required to be paid in relation to such policies.
11.4. Where the Freelance engages a sub-contractor ( other than a service company providing the services of a named individual) in accordance with Clause 21 the Freelance shall ensure that the sub-contractor holds its own public liability insurance, and where applicable product liability insurance, with an adequate indemnity limit which shall be no less than two million pounds sterling (£2,000,000) with scope of cover appropriate to the Services provided under the T&C. For the avoidance of doubt, such minimum insurance level shall not be a limit of liability under the T&C.
11.5. The Freelance shall be responsible for insuring any equipment including without limitation motor vehicles or mobile plant provided by the Freelance to perform the Services against loss or damage and liabilities to third parties and anyone carried in or on such equipment.
11.6. The Freelance shall indemnify OMG Media (London) against all costs and expenses (including legal costs), losses and liabilities which OMG Media (London) may incur as a result of :
11.6.1. the Freelance’s breach of or non-compliance with its obligations or warranties under the T&C;
11.6.2. the Freelance’s negligence or wilful default;
11.6.3. any claims from third parties made as a result of its acts or omissions (including relating to infringement of any IPR supplied under or used in connection with the T&C).
11.7. Neither party shall be liable for any “consequential” or “special” or “indirect” losses, loss of profits, revenues and/or business, anticipated savings, in each case, whether or not in the contemplation of the parties at the time of entering into the T&C, unless expressly set out in the T&C.
12. OMG Media Budgetary Limits
12.1 The Freelance shall provide the services within the set budgetary requirements as specified within this T&C.
13. OMG Media Policy
13.1. If required by OMG Media (London) to do so the Freelance shall comply with the current OMG Media Guidelines.
13.2. OMG Media (London) Limited’s editorial decision shall be final and nothing in the T&C shall oblige OMG Media (London) to use or prevent the use of the video/programme/production, either in whole or in part, in connection with which the Product(s) and/or Services are provided under the T&C.
14.1 Any credits awarded to the Freelance pursuant to the T&C shall be in accordance with any applicable OMG Media guidelines. As a general rule, OMG Media permits the freelance to credit their work on personal non-competitor websites.
15. Intellectual Property Rights
15.1. The Freelance hereby assigns and otherwise agrees to assign to OMG Media (London) absolutely and with full title guarantee, and warrants that any individual, agent or sub-contractor engaged by the Freelance to assist in providing the Product(s) and/or Services have assigned and/or agreed to assign to the Freelance absolutely and with full title guarantee all IPRs (both existing at the date hereof and in the future) in any Product(s) in all languages throughout the Universe for the full period of such rights (including all rights to renewals and extensions thereof).
15.2. The Freelance hereby to the extent permissible by law, waives irrevocably and warrants that any individual, agent or sub-contractor engaged by the Freelance to assist in providing the Product(s) and/or Services have to the extent permissible by law waived irrevocably the benefits of any provision of law known as “moral rights” (including without limitation any right of the Freelance, the individual, agent or sub-contractor under sections 77 to 85 inclusive of the Copyright, Designs and Patents Act 1988 and under any resale right arising from EU law) or any similar laws of any jurisdiction in which waiver is permissible.
15.3. The Freelance hereby grants OMG Media (London) a non-exclusive, royalty free, irrevocable licence to use and sub-licence any IPRs in any Product(s) under the T&C which have not, for whatsoever reasons, been assigned under this Clause 15.
15.4. The Freelance hereby warrants that there are no potential, threatened or actual claims by its agents or subcontractors in respect of patents or potential patents.
16.1. Except for the purposes of the T&C, neither the Freelance nor OMG Media (London) (each a “Party” for the purposes of this Clause) will use or make available to any third party at any time during or after the T&C any Designated Information of the other Party except that nothing shall prevent a Party disclosing Designated Information which is disclosed to its employees, professional advisors, agents and subcontractors solely on a need-to-know basis provided that the disclosing Party procures that the person to whom such disclosure is made complies with the obligations under this Clause as if it were a party to the T&C.
16.2. In this Clause “Designated Information” means information (in whatever form) relating to the business or affairs of a Party which is disclosed at any time by or on behalf of that Party to the receiving Party, or otherwise is in the possession of the receiving Party, in connection with the T&C and which is confidential.
OMG Media (London) may at any time by notice in writing terminate the T&C with immediate effect if:
17.1. the Freelance commits any breach of any of the provisions of the T&C and:
17.1.1. the breach is capable of remedy and the Freelance has failed to remedy the breach within 7 days (or such shorter period as may be reasonable) of receipt of a notice specifying the breach and requiring its remedy in which case OMG Media (London) reserves the right to remedy the breach and recover the costs thereof from the Freelance and terminate the T&C in accordance with this Clause 18; or
17.1.2. the breach is not capable of remedy; or
17.1.3. the breach is a material breach or a breach of a material term;
17.2. the continued performance thereof is prevented by reason of any event beyond the reasonable control of OMG Media (London) or the Freelance (any such occurrence being deemed an event of force majeure); or
17.3. if the Freelance delays in providing the Product(s) and/or Services or notifies OMG Media (London) that they are likely to be so delayed, or OMG Media (London) reasonably believes the Freelance will be so delayed.
17.4. there is in OMG Media (London) Limited’s opinion a financial, editorial or other substantial reason. and in such event OMG Media (London) Limited’s liability to the Freelance shall be limited to payment of such sums as may be due to the Freelance up to and including the date of termination.
18. Consequences of Termination
18.1. Termination of the T&C howsoever arising shall:
18.1.1. subject to Clause 17.4 not in itself give rise to a claim by the Freelance for damages or otherwise beyond a claim for payment due under the T&C up to and including the date of termination; or
18.1.2. not prejudice any right of action accruing or already accrued to either party at the date of termination and the rights and obligations of either party arising under Clauses 3, 4.3, 7, 8, 11, 12, 14, 15, 16, 17, 18.4, 19, 23 and 25, shall survive termination of the T&C.
18.2. Upon termination of the T&C for whatever reason the Freelance shall promptly deliver up to OMG Media (London) at the Freelance’s own risk and expense the whole or any part of any Product(s) owned by OMG Media (London) pursuant to Clause 10.2 hereof and any OMG Media equipment/materials, used under the T&C. OMG Media (London) shall be deemed to have irrevocably all powers and authority to enter the Freelance’s premises or any other premises to recover and remove such items and recover the costs thereof from the Freelance.
19. Equal Opportunities Requirements
The Freelance shall:
19.1. comply with all current relevant anti-discriminatory legislation (including without limitation race relations, equal pay, fair employment, disabled persons employment and minimum wage legislation);
19.2. comply with OMG Media (London) Limited’s equal opportunities policy, details of which OMG Media (London) shall provide to the Freelance when engaging personnel on behalf of OMG Media (London) in performance of the T&C; and
19.3. use all reasonable endeavours to adhere to the current relevant codes of practice published by the Equal Opportunities Commission, the Commission for Racial Equality, the Department of Employment and the Fair Employment Commission (Northern Ireland).
20. Information Provision
20.1. If requested by OMG Media (London) Limited, the Freelance shall provide evidence of compliance with any of the Freelance’s obligations under the T&C including, without limitation, in connection with the measures set out under Clause 20.2.
20.2. To ensure that the Product(s) and/or Services achieve the level of service required by OMG Media (London) Limited, where appropriate OMG Media (London) may stipulate a range of measures by which the Freelance’s performance can be assessed.
21.1. The Freelance shall not without the prior consent of OMG Media (London) assign or sub-contractor any of its rights or obligations under the T&C to any third party.
21.2. Where the Freelance engages, with OMG Media consent, a sub-contractor for work involving aircraft (including helicopters, balloons, model aircraft, parachutes); armourers; asbestos; diving; explosives, pyrotechnics and fire effects; flying ballet; hydraulic hoist contractors; lasers; location lighting; scaffolding and similar structures; specialised rigging and wiremen; smoke effects and stunt artists the Freelance shall:
21.2.1. only use those sub-contractors approved by OMG Media (London) for that purpose.
21.2.2. obtain a written risk assessment from the sub-contractors and incorporate such assessment in the Freelance’s own risk assessment referred to in Clause 7.4.2.
21.3. Notwithstanding that all liability for any sub-contractors rests with the Freelance where a sub-contractor is engaged by the Freelance in accordance with Clause 22.1 the Freelance shall ensure that the sub-contractor shall be subject to the same obligations as the Freelance is subject to under the T&C and the Freelance shall do all things necessary to ensure that the sub-contractor complies with these, including if requested obtaining an undertaking from the sub-contractor in favour of OMG Media (London) binding the sub-contractor to comply with the T&C and giving the sub-contractor all relevant information provided to the Freelance by OMG Media (London) Limited.
22. Data Protection
22.1. The Freelance shall comply in all respects with all current data protection legislation including the Data Protection Act 1998 (the “Act”);
22.2. If in the reasonable opinion of OMG Media (London) Limited, as a result of entering into the T&C the Freelance becomes a Data Processor and OMG Media (London) a Data Controller as defined in the Act, then the Freelance shall:
22.2.1. process personal data (as defined in the Act) in accordance with the eight Data Protection Principles and, in particular, in order to comply with the Seventh Data Protection Principle, shall, and shall procure that the Freelance’s sub-T&Cors and any other person within the control of the Freelance, shall:
22.214.171.124. process personal data only in accordance with instructions from OMG Media (London) Limited;
126.96.36.199. take reasonable steps to ensure the reliability of any employees who have access to personal data;
188.8.131.52. take such technical and organisational security measures against unauthorised and unlawful processing of, accidental loss of, destruction of or damage to, personal data as may be required, having regard to the state of technological development and the cost of any measures, to ensure a level of security appropriate to the harm that might result from such processing, loss, destruction or damage and the nature of the data to be protected;
184.108.40.206. grant to OMG Media (London) such access as is reasonably necessary to enable OMG Media (London) to verify the Freelance is performing its obligations under this Clause 23; and
22.2.2. where applicable, comply with the provisions of the Telecommunications (Data Protection and Privacy) Regulations 1999 regarding unsolicited direct marketing.
22.3. If the Product(s) or the Services contain personal data governed by the Data Protection Acts 1984 and/or 1998 then the Freelance warrants that such data was obtained by the Freelance and is supplied to OMG Media (London) in compliance with those Acts and the Telecommunications (Data Protection and Privacy) Regulations 1999.
23.1. Unless and until specified otherwise in writing by an authorised official of either party, any notice required to be given pursuant to the T&C shall be in writing and sent either by hand, by prepaid recorded delivery, or registered post, or by prepaid first class post, or by fax confirmed by prepaid first class post, or by e-mail which has been received, as evidenced by the receipt by the sender of a read receipt or other acknowledgement, to OMG Media (London) or the Freelance at the addresses specified in the Purchase Documentation and any such notice shall be deemed to have been received by the addressee at the time of delivery or in the case of prepaid first class post, two days after posting.
23.2. The failure of either party to exercise or enforce any right conferred upon them by the T&C shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time(s) thereafter, as a waiver of another or constitute a continuing waiver.
23.3. Nothing in the T&C shall be deemed to constitute an employment relationship, or either party as the agent of the other or create a partnership or joint venture between the parties and save as expressly agreed in Purchase Documentation the Freelance shall have no power to bind OMG Media (London) or to T&C in the name of or create a liability against OMG Media (London) in any matter whatsoever.
23.4. Any amendment or variation to the T&C shall be made by prior written agreement between the parties.
23.5. The unenforceability of any single provision of the T&C shall not affect any other provision thereof. Where a provision is held to be unenforceable, the parties shall use their best endeavours to negotiate and agree upon an enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the unenforceable provision.
23.6. The headings to the clauses and sections of these terms of trade are for ease of reference only and shall not affect the interpretation or construction of the T&C.
23.7. This T&C does not create or confer any right under the T&Cs (Rights of Third Parties) Act 1999 which are enforceable by any person who is not a party to the T&C.
23.8. Without prejudice to the rights of either party in respect of fraudulent misrepresentation, the T&C and any appendices and any documents referred to therein constitutes the entire understanding between the parties with respect to the subject matter thereof and supersedes all prior agreements, negotiations and discussions between the parties relating thereto.
23.9 This T&C shall be governed in accordance with English law. It is irrevocably agreed for the exclusive benefit of OMG Media (London) that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this T&C and that accordingly any suit, action or proceeding arising out of or in connection with this T&C (in this Clause referred to as “Proceedings”) may be brought in such courts. Nothing in this Clause 26 shall limit the right of OMG Media (London) to take Proceedings against the Freelance in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or not.
By ticking the box on the form, you accept these terms and conditions.