1. Application of Terms and Conditions
1.1 The Supplier shall supply and the Customer shall purchase the Services in accordance with the Quotation which shall be subject to these Terms and Conditions; and
1.2 The Contract shall be to the exclusion of any other terms and conditions subject to which any such Quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
2. Definitions and Interpretation
2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Commencement Date” means the commencement date for the Contract as set out in the Quotation;
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Contract” means the contract for the purchase and supply of the Services under these Terms and
“Contract Price” means the price stated in the Quotation payable for the Services;
“Customer” means the person who accepts a quotation or offer of the Supplier for the supply of the Services, or whose order for the Services is accepted by the Supplier;
“Delivery Date” means the date on which the Services are to be delivered as stipulated in the Customer’s order and accepted by the Supplier;
“Month” means a calendar month;
“Services” means the Services to be provided to the Customer as set out in the Quotation;
“Quotation” means the Supplier’s quotation for the services which specifies what services shall be delivered and when along with the price and payment terms of the services; and
“Supplier” means 3xScreen Media Limited, a company registered in England and Wales under Company Number 06460005 of Davina House, 137-149 Goswell Road, London EC1V 7ET and includes all employees and agents of 3xScreen Media Limited.
2.1.1 Unless the context otherwise requires, each reference in these Terms and Conditions to:
a) “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
b) a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
c) “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
d) a Schedule is a schedule to these Terms and Conditions; and
e) a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
f) a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
2.2 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.3 Words imparting the singular number shall include the plural and vice versa.
2.4 References to any gender shall include the other gender.
3. Basis of Supply of Services
3.1 The Supplier’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.2 No variation to these Terms and Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Supplier.
3.3 Sales and marketing literature, website content, price lists and other documents issued by the Supplier in relation to the Services are subject to alteration without notice and do not constitute offers to sell the Services which are capable of acceptance. No contract for the sale of Services shall be binding on the Supplier unless the Supplier has issued a quotation which is expressed to be an offer to sell the Services or has accepted an order placed by the Customer by whichever is the earlier of:
a) the Supplier’s written acceptance;
b) provision of the Services; or
c) the Supplier’s invoice.
3.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
4. The Services
4.1 No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in writing by the Supplier’s authorised representative.
4.2 The specification for the Services shall be that set out in the Supplier’s Quotation unless varied expressly in the Customer’s order (if such variation(s) is/are accepted by the Supplier).
4.3 Illustrations, photographs or descriptions whether in catalogues, brochures, web sites, price lists or other documents issued by the Supplier are intended as a guide only and shall not be binding on the Supplier.
4.4 The Supplier reserves the right to make any changes in the specification of the Services which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Services are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
4.5 No order which has been accepted by the Supplier may be cancelled, or re-scheduled, by the Customer except with the agreement in writing of the Supplier on the terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of such cancellation or re-scheduling.
4.6 Accepted orders that are cancelled or re-scheduled will be invoiced at the following rates:
> 72 hours, no cancellation/re-scheduling fee
< 72 & > 48 hours of call time – 25% cancellation/re-scheduling fee
< 48 & > 24 hours of call time- 50% cancellation/re-scheduling fee
< 24 hours of call time – 100% cancellation/re-scheduling fee
4.7 With effect from the Commencement Date the Supplier shall, in consideration of the price being paid in accordance with Clauses 7 and 8 will provide the Services expressly identified in the Quotation.
4.8 The Supplier will use reasonable care and skill to perform the Services identified in the Quotation.
4.9 The Supplier shall use its reasonable endeavours to complete its obligations under the Contract, but time will not be of the essence in the performance of such obligations.
5.1 The price of the Services shall be the price listed in the Supplier’s Quotation or such other price as may be agreed in writing by the Supplier and the Customer.
5.2 The Supplier reserves the right, by giving written notice to the Customer at any time before delivery or provision, to increase the price of the Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Supplier’s Services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
5.3 The price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Supplier’s Services, which the Customer shall be additionally liable to pay to the Supplier.
6.1 Subject to any special terms agreed in writing between the Customer and the Supplier, the Supplier shall invoice the Customer for the price of the Services on or at any time after the Provision of the Services or as specifically detailed in the Quotation if part payment is due prior to the delivery of the Services.
6.2 The Customer shall pay the price of the Services (less any discount or credit allowed by the Supplier, but without any other deduction, credit or set off) within 30 days of the date of the Supplier’s invoice or otherwise in accordance with such credit terms as may have been agreed in writing between the Customer and the Supplier in respect of the Contract. Payment shall be made on the due date notwithstanding that delivery or provision may not have taken place to the Customer. The time for the payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3 All payments shall be made to the Supplier as indicated on the form of acceptance or invoice issued by the Supplier.
6.4 The Supplier is not obliged to accept orders from any customer or buyer who has not supplied the Supplier with references satisfactory to the Supplier. If at any time the Supplier is not satisfied as to the creditworthiness of the Customer it may give notice in writing to the Customer that no further credit will be allowed to the Customer in which event no further goods or services will be delivered or provided to the Customer other than against cash payment and notwithstanding sub-Clause 7.2 of these conditions, all amounts owing by the Customer to the Supplier shall be immediately payable in cash.
7. Non-Delivery of the Services
7.1 The Supplier shall exercise all due and proper care to ensure that the manner in which it performs or provides the Services does not have any adverse effect on the name, trading image, reputation or business of the Customer.
7.2 In the event that the Supplier fails to provide any of the Services or commits any breach which otherwise adversely affects the provision of the Services, the Supplier has the right to remedy such breach within five Business days of notice from the Customer, without incurring any penalty of any nature whatsoever. In the event such breach is committed by the Supplier during the provision of live event streaming services, the Supplier will make its best efforts to solve such problem immediately.
7.3 For the supply of live event streaming services, if the service is interrupted for more than five (5) minutes or there is defective streaming for more than five (5) minutes, being such interruption or defect responsibility of the Supplier (or any of its subcontractors), or due to its fault or negligence, the Customer will be entitled to:
7.3.1 Terminate the Agreement with immediate effect after the live event where the delay/interruption or defect has occurred, and/or
7.3.2 Reduce the fee of such live event streaming proportionally to the number of minutes the interruption has lasted.
8.1 The Supplier may assign the Contract or any part of it to any person, firm or company without the prior consent of the Customer.
8.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
9. Customer’s Default
9.1 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
a) cancel the order or suspend any further provision of Services to the Customer;
b) appropriate any payment made by the Customer to such of the Services (or services supplied under any other contract between the Customer and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer); and
c) charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 5% per annum above London Interbank Offered Rate (LIBOR) from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
9.2 This condition applies if:
a) the Customer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;
b) the Customer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
c) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer;
d) the Customer ceases, or threatens to cease, to carry on business; or
e) the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.3 If sub-Clause 9.2 applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further provision of Services under the Contract without any liability to the Customer, and if the Services have been provided not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.1 The Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of the Contract (or these Terms and Conditions), be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s servants or agents or otherwise) which arise out of or in connection with the supply of the Services.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 The Customer shall indemnify the Supplier against all damages, costs, claims and expenses suffered by arising from loss or damage to any equipment (including that of third parties) caused by the Customer, its agents or employees.
10.4 Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
10.5 The Supplier shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
10.6 Nothing in these Terms and Conditions excludes or limits the liability of the Supplier:
a) for death or personal injury caused by the Supplier’s negligence;
b) for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or
c) for fraud or fraudulent misrepresentation.
10.7 Subject to the remaining provisions of this Clause 10:
a) the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
b) The Suppler shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11.1 Each Party undertakes that, except as provided by sub-Clause 11.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Contract and [for 12 months] after its termination:
a) keep confidential all Confidential Information;
b) not disclose any Confidential Information to any other person;
c) not use any Confidential Information for any purpose other than as contemplated by and subject to these Terms and Conditions and the Contract;
d) not make any copies of, record in any way or part with possession of any Confidential Information; and
e) ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-clauses 11.1.1 to 11.1.4 above.
11.2 Either Party may:
a) disclose any Confidential Information to:
11.2.2 any sub-contractor or supplier of that Party;
11.2.3 any governmental or other authority or regulatory body; or
11.2.4 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
to such extent only as is necessary for the purposes contemplated by these Terms and Conditions and the Contract, or as required by law, and in each case subject to that Party first informing the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 188.8.131.52 above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause 11, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
b) use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Contract, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.
11.3 The provisions of this Clause 11 shall continue in force in accordance with their terms, notwithstanding the termination of the Contract for any reason.
12.1 All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
12.2 Notices shall be deemed to have been duly given:
a) when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or
b) when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
c) on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
d) on the tenth business day following mailing, if mailed by airmail, postage prepaid.
12.3 All notices under this Agreement shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
13. Force Majeure
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
16. Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
17. Advertising & Promotion
17.1 The Supplier may from time to time, develop video, pictorial and written show reels and other promotional materials which include the name of the Customer and a brief summary or highlights video of the project that the Supplier undertook for the Customer.
17.2 Any advertising and promotional materials developed by the Supplier shall not contain Confidential Information as defined in Clause 11.
17.3 Explicit permission of the Customer for these limited promotions will not be sought by the Supplier unless it is deemed appropriate by the Supplier to do so.
17.4 Customer permission will be sought by the Supplier for Case Studies and other more detailed promotional materials developed by the Supplier or if the Supplier deems a risk of disclosure of Confidential Information.
18.1 Supplier assigns to the Customer absolutely, with full title guarantee, all rights, including copyright, throughout the world in and to the product of the Services (including the recordings).
19. Artistic Control
19.1 – Customer shall control all aspects of the production, including without limitation casting, storyboard and scripts.
20. Law and Jurisdiction
20.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
20.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.