Professional services addendum (“addendum”)

Last updated: 11 May, 2023

PARTIES

(1) Seenit Digital Limited a company registered in England and Wales (with company number 08838909 whose registered office is at 3rd Floor, 150 Buckingham Palace Road, Belgravia, London, SW1W 9TR) (“Seenit”).

(2) [Customer] incorporated and registered in England and Wales with company number 06770098 whose registered office is at Northcliffe House 2 Derry Street, Kensington, London, W8 5TT (the “Customer”)

BACKGROUND

(A) Seenit and the Customer entered into a Contract for Subscription Services dated ________ pursuant to which Seenit agreed to provide and the Customer has agreed to take and pay for the Subscription Services (the “Original Contract”).

(B) The Customer now wishes to purchase Professional Services in addition to the Subscription Services and the parties have agreed to amend, in respect of the Professional Services only, the Original Contract, as set out in this addendum (the “Addendum”).

(C) This Addendum is supplemental to the Original Contract. 

AGREED TERMS

In consideration of the mutual benefits set out herein, the parties agree as follows:

1. Definitions and interpretation
   1. This Addendum is subject to the terms of the Original Contract and, once executed by both parties, shall be fully incorporated by reference into the Original Contract as Schedule 8. All terms (including defined terms) and rules of Interpretation set out in the Original Contract shall apply to this Addendum unless expressly amended herein. 
   2. The terms set out in this Addendum shall only apply to Professional Services.
   3. References to the “Contract” shall be taken to mean “Contract as complemented and amended by this Addendum”. Sections of this Addendum shall be referred to as “paragraph”.

   4. Definitions:

      Assumptions

      the pricing assumptions which underpin the Professional Services Fees and the Professional Services Credits payable by the Customer in consideration for the provision of the Professional Services as set out in an Order Form;

      Business Day

      a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;

      Business Hours  

      the period from 9.00 am to 6.00 pm on any Business Day;

      Customer Background IPR

      materials owned by the Customer which were developed independently of the Professional Services before the commencement of those Professional Services, and which includes Customer Content;

      Customer Personnel

      any individuals employed or engaged by the Customer or any of its subcontractors or service providers, be they employees, workers, contractors, directors, officers, secondees, agency workers, casual works, zero hours workers, volunteers, interns, apprentices, posted workers or otherwise;

      Deliverable

      the output of Professional Services created specifically for the Customer by or on behalf of Seenit in the course of providing Professional Services;

      Dependencies

      the obligations of the Customer set out in the Contract (including this Addendum), the Order Form and Statement of Work;

      Employment Liabilities 

      means any employment-related and/or pension-related losses, costs, liabilities, expenses of whatever nature;

      Professional Services Credit

      a prepaid amount of Seenit credits : 

      • contained in your Subscription or purchased in addition to your Subscription;

      • with which you are entitled to purchase professional services proposed by Seenit ; and

      • which may exist in the type of “Editing”, “Production Packages” or “Training”;

      Seenit Background IPR

      materials owned by Seenit which were developed independently of the Professional Services before the commencement of those Professional Services, and which includes the Seenit Platform, the Seenit Media, the Documentation;

      Replacement Supplier

      a party appointed by the Customer to replace Seenit and/or its relevant subcontractors as provider of all or part of the Professional Services (or services which are substantially the same or similar to all or part of the Professional Services);

      Seenit Personnel

      any individuals employed or engaged by Seenit or any of its subcontractors, be they employees, workers, contractors, directors, officers, secondees, agency workers, casual works, zero hours workers, volunteers, interns, apprentices, posted workers or otherwise;

      Statement of Work

      a statement of work which describes the work and estimates the timeframe and the Professional Services Fees and/or Professional Services Credits payable to Seenit to provide the Professional Services purchased in accordance with an Order Form for those Professional Services. The Statement of Work as amended from time to time by the parties shall form part of the Order Form for those Professional Services;

      TUPE

      the Transfer of Undertakings (Protection of Employment) Regulations 2006 and any local legislation implementing the Acquired Rights Directive 77/187/EC as amended from time to time, or any analogous provision of any jurisdiction where the Acquired Rights Directive 77/187/EC does not have effect.

2. Professional Services
   1. The Customer may purchase professional services: 
      1. as part of a Subscription in which case the related fees will form part of the agreed Subscription Fees; or
      2. separately from the Subscription, in bulk or as a one-off project.
   2. Seenit shall provide the Professional Services to the Customer with reasonable skill and care and in accordance with the Contract. 
   3. Subject to Clause 11(f) (Our Obligations to you), if the Professional Services do not conform with the obligation in paragraph 2.2 above, Seenit will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance as soon as reasonably practicable, or to provide you with a reasonable alternative means of accomplishing the desired performance within Seenit’s existing scope of professional services. Such correction or substitution constitutes your sole and exclusive remedy for any breach of paragraph 1.3 above.
   4. Any dates set out in a Statement of Work, Order Form or else in respect of the Professional Services is stated as an estimate.
3. Ordering process
   1. The Customer will start the order process by selecting the professional services and Add-ons it wishes to procure which are set out in the services section on the Seenit Platform. 
   2. For all Professional Services that it wishes to procure, the Customer shall provide Seenit, in an online brief made available on the Seenit Platform, with a description of the work, the Deliverables and other relevant information necessary for Seenit to perform the Professional Services. 
   3. On receiving such a brief, Seenit will provide the Customer with an Order Form which will outline the payable Professional Services Fees and/or Professional Service Credits, and will contain a Statement of Work. 
   4. The stated amounts of Professional Services Fees and/or Professional Service Credits and the Statement of Work provided by Seenit shall depend on and set out the level and complexity of Professional Services requested by the Customer, and may include limits such as a number of revisions, a set duration of training or a level of complexity of a video edit.
   5. If during the provision of the Professional Services, the Customer decides to change some or all of the requirements related to the Professional Services and/or Deliverables, 
      1. Seenit will notify the Customer in writing of any resulting increase to the Professional Service Fees and/or Professional Service Credits (as applicable) and of any change to the estimated delivery dates; and 
      2. Seenit shall have no obligation to continue providing the Professional Services or complete the unfinished Deliverables until the revised Professional Services Fees and/or Professional Service Credits (as applicable) have been agreed by the Customer and set out in an updated Statement of Work; and
      3. Seenit shall be entitled to ignore the requested changes and to continue providing the Professional Services and Deliverables as originally agreed, in the event that the Customer has not agreed to the revised Professional Services Fees and/or Professional Service Credits (as applicable) within 3 business Days
   6. Should the Customer wish to make any changes to a completed Deliverables, it shall order new professional services in accordance with this Addendum.
4. Customer’s obligations
   1. For the duration of the Contract for Professional Services, the Customer shall provide to Seenit in a timely manner all cooperation, documents, information, instructions, items and materials in any form (whether owned by the Customer or third party) reasonably required by Seenit in connection with the provision of Professional Services and shall ensure that they are accurate, up to date and complete. For the avoidance of doubt, Seenit shall not be obliged to start the Professional Services until the Customer has complied with its obligations under this paragraph 4.1. 
   2. If the Customer has procured Professional Services of the editing or production type it shall be entitled to the number of revision rounds which has been specifically agreed and stated in the Order Form. 
   3. Where the Customer has purchased revision rounds, the Customer shall provide Seenit with feedback on a draft Deliverable within five (5) Business Days of Seenit’s delivery after which, in the absence of feedback from the Customer, the Deliverable and related Professional Services shall be deemed successfully completed and Seenit shall be entitled to issue an invoice.
5. Credits, Fees and Payment terms
   1. In consideration of the provision of the Professional Services by Seenit, the Customer shall, at its discretion, pay the Professional Services Fees or use the Professional Services Credits the Customer it has purchased.
   2. In the event that the Assumptions prove to be wrong or that the Customer has not complied with some or all of the Dependencies and has caused Seenit to spend more time, resources or other costs in delivering the Professional Services, Seenit shall be entitled to increase the Professional Services Fees or Professional Services Credits to be used accordingly.
   3. On completion of the Professional Services Seenit shall, as applicable:
      1. invoice the Professional Services Fees incurred to the Customer; and/or
      2. deduct the Professional Services Credits balance of the Customer of the Professional Services Credits used and email them of the remaining balance of Professional Services Credits.
   4. The Customer may purchase Professional Services Credits as part of a Subscription or at any time thereafter during a Subscription Period.
   5. If the Customer has Professional Services Credits and chooses to use them to pay for Professional Services, Seenit shall inform the Customer in writing of the amount of those Professional Services Credits it requires to provide the Professional Services, subject to paragraph 5.2. 
   6. The Professional Services Credits purchased alongside a Subscription (including Professional Services Credits purchased after the Commencement Date of the applicable Subscription) can be used at any time during the applicable Subscription Period but shall expire on termination or expiry of such Subscription whichever is the earlier.
   7. If the event that the Professional Services Credits:
      1. are not sufficient to pay for the entirety of the Professional Services ordered by the Customer, the Customer shall either purchase additional Professional Services Credits or pay the difference with Professional Services Fees in accordance with the principles set out in paragraph 5.8 of this Addendum and clause 3 of the Contract; or
      2. exceed the amount required to be used in order to receive the Professional Services ordered by the Customer, the Customer may use the remainder of the Professional Services Credits in accordance with paragraph 5.4 above.
   8. Where the Customer pays for Professional Services with Professional Services Fees, the Professional Services Fees set out in an Order Form shall, unless specified otherwise, be fixed  and, shall be subject to the Assumptions and to the Customer’s compliance with the Dependencies.
6. Intellectual Property
   1. All Customer Background IPR shall remain vested in and owned by Customer or its licensors (as applicable).
   2. The Customer hereby grants to Seenit for the duration of a relevant Contract a non-exclusive, royalty-free, non-transferable, licence to use any Customer Background IPR made available to Seenit by or on behalf of Customer for the purpose of enabling  Seenit to create the Deliverables and/or supply the Professional Services in accordance with the terms of the relevant Contract. 
   3. All Seenit Background IPR and the Deliverables shall remain vested in and owned by Seenit.
   4. Subject to the Customer’s full payment of the Professional Services Fees, Seenit grants the Customer a perpetual, irrevocable, sub-licensable, non-transferable, non-exclusive, royalty-free, worldwide license to use, copy, reproduce, distribute, publicly display, publicly perform, sub-license, modify, improve, enhance, and make derivative works of the Deliverables.
7. Non Solicitation
   1. The Customer shall not, without the prior written consent of Seenit, at any time from the date of the Contract to the expiry of 12 months after the termination or expiry of the Contract, solicit or entice away from Seenit or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Seenit in the provision of the Professional Services.
   2. Any consent given by Seenit in accordance with Clause 7.1 shall be subject to the Customer paying to Seenit a sum equivalent to 20% of the then current annual remuneration of Seenit’s employee, consultant or subcontractor or, if higher, 20%of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
8. TUPE
   1. The provisions of Annex A relating to TUPE shall apply when this agreement commences.
9. Termination
   1. If a Contract for a Subscription in relation to which the Professional Services were purchased is terminated for any reason, the related Contract for Professional Services shall end on the same date and the Customer shall pay Seenit for the Professional Services performed up until that date and may request from Seenit a copy of the Deliverables in the state they are in on such date.
   2. Should there be remaining Professional Services Credits on expiry or termination of the Professional Services Contract, the Customer shall not be entitled to a reimbursement for those Professional Services Credits..
   3. On termination or expiry of a relevant Contract for Professional Services, the Customer shall immediately pay to Seenit all of Seenit’s outstanding unpaid invoices and interest  and, in respect of the Professional Services supplied but for which no invoice has been submitted, Seenit may submit an invoice, which shall be payable immediately on receipt.
   4. The following provisions of this Professional Services Addendum shall survive termination or expiry of the relevant Contract: paragraph 6 (Intellectual Property), paragraph 7 (Non-solicitation), , paragraph 9 (Termination).

Annex A TUPE

The position on entry

1. The parties do not consider that the provision of all or part of the Professional Services contemplated by the Contract constitute a relevant transfer under regulation 2(1) and 3 of TUPE. 
2. Notwithstanding the parties’ intention under paragraph 1 above, in the event that the employment of any the Customer Personnel and/or any Employment Liabilities transfer to Seenit (or it is alleged on reasonable grounds that they have so transferred) as a result of the commencement of all or part of the Professional Services contemplated by the Contract, in accordance with TUPE:
   1. Seenit shall promptly notify the Customer;  
   2. within ten (10) business days of receipt of such notification (“Entry Offer Period”), the Customer may make an offer in writing of employment or re-employment to such transferred employee;
   3. within ten (10) business days of the expiry of the Entry Offer Period, Seenit and/or its relevant subcontractors may terminate the contract of employment of the relevant transferred employee; 
   4. the Customer shall indemnify and keep indemnified Seenit and its relevant subcontractors against any Employment Liabilities arising from or in connection with:
      1. the termination of the employment of any transferring employees including any Employment Liabilities in relation to the period up to and including the date on which the employment terminates; and/or
      2. any other Employment Liabilities which may transfer to Seenit (including any Employment Liabilities arising from acts and omissions prior to the transfer and any failure to inform and consult with affected employees for the purposes of TUPE) and for which Seenit shall become responsible by virtue of TUPE; 
   5. Seenit shall use reasonable endeavours to minimise the amount of any liabilities under Paragraph 2.4 and comply with any reasonable instructions by the Customer with a view to minimising any such liabilities. For the avoidance of doubt, nothing under this paragraph 2.5 shall prevent the termination of any transferred employee.