client terms and conditions
TERMS & CONDITIONS
These Terms and Conditions shall govern each and every Project and shall form part of the agreement between us for all work carried out by us for you. No variation of any term or condition set out herein shall be effective unless agreed in writing by both parties. The headings in these Terms and Conditions are for convenience only and do not form part of the agreement between us.
1. Definitions
The words below are agreed to mean as follows:-
“Budget” Agreed cost of Project and subject to payment terms of 30 days from date of invoice unless otherwise agreed in writing
“Cancellation Fee” The amount payable on cancellation of a Project in accordance with the Budget
“Fee” The fee as invoiced for the work carried out by us in accordance with the Budget.
“Intellectual Property Rights” All copyright, design rights, registered designs, trademarks, patents, confidential information, ideas, moral rights and all other rights whatsoever whether those rights are registered or not.
“Job Specification” Details of the work to be undertaken by us provided by you and agreed with us
“Project” The work that we have agreed to carry out for you in accordance with the agreed Job Specification
“Quotation” The approximate cost of the Project in accordance with the proposed Job Specification taking into account the proposed Budget.
2. Costs
(a) A quotation shall be provided on demand and may be subject to revision in the event that the Job Specification shall change.
(b) The Fee will be calculated in accordance with the Budget.
(c) We reserve the right to amend our charges from time to time however we shall provide you with reasonable notice of any such change.
3. Additional Costs
We reserve the right to charge additional costs as follows:-
(a) For changes to the Project requested by you in writing which are additional to and go beyond the Job Specification;
(b) For any third party liability incurred by us (for which a fee or cancellation fee is payable by us) as a result of any changes to the Project requested by you in writing;
(c) We shall give you prior written notice of any additional costs and shall not incur such additional costs without prior notification. Such costs shall be added to the Budget unless otherwise agreed by the parties.
(d) We shall handle all travel arrangements as necessary, the reasonable costs of which shall be agreed between us and payable by you.
(e) You shall reimburse us for any reasonable out of pocket expenses to include without limitation travel, parking and courier costs incurred by us in connection with carrying out our obligations under this agreement over and above those specified in the budget.
4. Subcontractors and Third party Rights
(a) We shall ensure that any third parties contracted by us will enter into written agreements and assign all Intellectual Property created specifically during the course of the Project to us and waive any non transferable rights if and when so required.
(b) No term of these conditions is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.
(c) We may utilise such persons as is necessary in the performance of the Services including any replacements thereof provided any such persons possess the necessary skills to perform the Services to an acceptable level. You acknowledge that as an independent business you shall not be entitled nor shall you seek to supervise, direct or control the manner in which we provide the services.
5. Intellectual Property
(a) All present and future Intellectual Property Rights of whatever nature in material acquired by us arising out of the Project and our officers, directors, employees or agents will remain with us until the Fee is paid in full.
(b) You hereby grant to us a non exclusive royalty free licence throughout the world in perpetuity to use the Work as part of our library of works and to use the Project for the purposes of our own promotion to include using the Project to enter into any media related competition or nominate the Project for any media award.
(c) You warrant and undertake that you have obtained all necessary rights, consents, permissions and licences for the use of all materials supplied by you to us and we will not be held liable for any copyright infringements, royalty claims or any other litigation resulting from such materials supplied by you. You undertake to indemnify us, our officers, directors, employees and agents and keep us at all times fully indemnified from and against all actions, proceedings, claims, demands, costs (including reasonable legal costs) awards and damages however arising directly or indirectly or incurred by reason of any infringement or alleged infringement of any intellectual property right relating to the Project.
(d) You shall be responsible for all third party sums paid or payable in respect of the Project including any sums payable to the Performing Right Society (PRS), Phonographic Performance Limited (PPL), Mechanical Copyright Protection Society Limited (MCPS), Video Performance Limited (VPL) and any synchronisation and mechanical fees and payments (if any) and re use fees and residuals (if any) and payments of any other nature whatsoever arising as a result of the Project.
(e) You warrant that nothing in any material supplied by you is defamatory or subject to any other legal restriction.
6. Credit
We assert our moral rights generally in respect of the Work under the Copyright, Designs and Patents Act 1988 and in particular to be credited in such a manner as we advise.
7. Insurance
(a) Our employees and directly contracted freelancers are covered by our professional Liability cover.
(b) We do not provide insurance cover for your materials, equipment and personal effects and we are not liable for any loss or damage to your materials, equipment and personal effects including accident, theft, fire, flood, explosion or any other circumstances when loss or damage may occur. For the avoidance of doubt we will not be liable for any materials, equipment and personal effects left with us under any circumstances.
(c) If you ask us to arrange additional insurance to cover your materials, equipment and personal effects we will obtain quotes and add the costs to the budget.
8. Data Protection Act
We are registered under the Data Protection Act 1984 and reserve the right to store and collect mechanical and/or electronic data relevant to the Work.
9. Indemnity
You undertake to fully indemnify us, our officers, directors, employees and agents and keep us at all times fully indemnified from and against all liabilities, claims, demands, actions, costs, damages and losses (including reasonable legal costs) arising out of any breach or non performance by you of any of the terms hereunder however arising. In the event of any claim, dispute, action, writ or summons against you, you agree to provide full details to us at the earliest opportunity and shall not settle any such matter without first consulting us.
10. Limitation of Liability
(a) Neither party excludes or limits liability to the other party for death or personal injury. In no event shall either party be liable to the other for loss of profits, business, revenue, goodwill or consequential loss or damage.
(b) Where we do not provide video, sound or lighting production or any other equipment you assume liability for the ordering, installation and function of all sound, video and lighting components and any other equipment. We shall not be liable for any technical difficulties arising from equipment sourced by you.
11. Termination
a) If you decide to cancel the Project you must do so in writing and you will be subject to the following cancellation charges:
Cancellation notice received more than 1 week before commencement, 50% of the Fee;
Cancellation notice received less than 1 week but more than 48 hours before commencement, 75% of the Fee;
Cancellation notice received less than 48 hours before commencement, 100% of the Fee.
(b) Our liability for any loss or damage consequential or otherwise and howsoever caused whether in tort (to include without limitation for negligence) or contract or otherwise shall not exceed the proportion of the amount invoiced by us to you in respect of the proportion of the Project completed as at the date of the loss or damage.
(c) In addition to any other rights and remedies at law, either party may by written notice to the other party terminate this agreement with immediate effect in the following circumstances:
(i) where the other party has committed any serious breach of its obligations under this agreement and (if the breach is capable of remedy) has failed to remedy such breach within thirty (30) working days of receipt of a notice specifying the breach and requiring remedy; or
(ii) where the other party goes into voluntary or involuntary liquidation or is declared insolvent either in bankruptcy proceedings or other legal proceedings or has reached an agreement with creditors due to its failure or inability to pay its debts as they fall due, or where a receiver is appointed over the whole or part of its business.
(d) Without prejudice to sub-clause (a) of this clause and notwithstanding the termination of this agreement for whatever reason, you shall remain liable to pay us all sums due on or prior to the date of termination and all provisions of this agreement expressed to remain in effect after termination shall remain in full force and effect.
(e) If either party is affected by any circumstances beyond the reasonable control of that party (“Force Majeure”) it shall forthwith notify the other party of the nature and extent thereof. Neither party shall be liable to the other for delay in performance, or non performance of any of its obligations under this agreement when due to any Force Majeure of which it has notified the other party and the time for performance of that obligation shall be extended accordingly.
12. Non- Solicitation
(a) Without prejudice to the specific obligations of the parties under these terms and conditions, you shall at all times keep you fully informed of all offers received, approaches and/or enquiries made and negotiations being conducted in relation to agreements or arrangements which fall within the scope of this agreement.
(b) You acknowledge that we have invested significant time, expertise and expense in establishing our staff, subcontractors and suppliers, and in the search, selection and retention of our staff and sub contractors, both of which you acknowledge we wish to protect. You undertake that you will not, during any period in which we are providing services to you, including but not limited to the Project, and for a period of twelve (12) months thereafter, either on your own or in conjunction with or on behalf of any other person, firm, company, business entity or other organisation whatsoever directly or indirectly:
- Induce, solicit, entice or procure to gain employment or engagement or any contractual or commercial relationship (otherwise than as contemplated by these terms and conditions) with any of our staff, sub contractors or suppliers;
- Accept employment or other engagement or any contractual or commercial relationship (otherwise than as contemplated by these terms and conditions) with any of our staff, sub contractors or suppliers;
- Approach any third party with whom we have a business relationship in connection with the Confidential Information with a view to establishing or participating in any business or services which may be competitive with us;
- Induce, solicit, entice or procure to leave the employment or engagement with you of any of our staff or sub contractors;
- Accept into employment or otherwise engage or use the services of any of our staff or sub contractors (save where such member of staff or sub contractor left our employment or was last engaged by us more than twelve (12) months before securing employment or being engaged by you).
13. General
(a) We, but not you, may assign the benefit or burden of this agreement without your prior written consent and without informing you.
(b) No waiver, variation or amendment of this agreement shall be valid unless made in writing and signed by both parties.
(c) Nothing in this agreement shall be deemed to constitute a partnership between the parties and neither of the parties shall do or suffer to be done anything whereby it may be represented as a partner of the other party.
(d) You shall execute such deeds and documents and take such steps as may be required to confirm to us any rights granted to us hereunder.
(e) Notices will be deemed to have been served (if delivered by hand) upon delivery or (if sent by first class post) two (2) days after being so sent or (if transmitted by facsimile or by electronic mail) when dispatched.
(f) Either party may notify a change of address, facsimile or electronic mail to the other party, such notification to be effective five (5) business days after the notification is given.
(g) If any of these conditions shall be prohibited or adjudged by a court to be unlawful void or unenforceable such provision(s) shall be severed from these conditions and rendered ineffective without affecting the validity or enforcement of the remaining conditions.
(h) This agreement shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English Court.