TERMS AND CONDITIONS
1. Introduction
1.1 These are the terms and conditions which apply to the contract between Clipics with its address at West Tower, 9 Goodwin Street, London N4 3HQ (“Supplier”) and the client to whom the Supplier contracts to supply the Services (“Client”).
2. Definitions
2.1 Capitalised terms have the following meanings in these terms:
Applicable Laws: all applicable laws, regulations and codes of conduct
Client Source Materials: any photos, videos, media files, documents, software or other materials that the Client supplies to the Supplier in connection with the Services
Client Venue: the Client’s premises or any other Venue arranged by the Client
Consumer: an individual acting for purposes which are wholly or mainly outside that person’s trade, business, craft or profession
Creator: an individual, usually a photographer, videographer, photo editor or video editor, acting as a subcontractor of the Services for the Supplier
Quote: the Supplier’s quote to which these terms and conditions apply
Services: photo shooting, video shooting, photo editing, video editing, scriptwriting, and any other services that the Supplier agrees to supply to the Client
Supplier Materials: any photos, videos, media files, documents, software or other materials that the Supplier agrees to create for the Client in connection with the Services
Supplier Venue: any Venue arranged by the Supplier
Venue: any venue at which the Services are to be performed
In writing: all forms of visible reproduction in permanent form (including email unless otherwise stated)
3. Forming a contract with the Supplier
3.1 These terms are incorporated into every contract with the Supplier and any terms proposed by the Client are excluded unless specifically agreed to by a director of the Supplier in writing.
3.2 Any quote by the Supplier is an invitation to the Client to make an offer. If the Client agrees to the quote whether by clicking on a link in the email or sending a separate email, the Client offers to contract with the Supplier. The Supplier accepts the offer and a contract is formed only when the Supplier sends a confirmation email to the Client. Until then, there is no contract between the Supplier and the Client notwithstanding what the Supplier may say or do.
3.3 Each Supplier quote that becomes a contract (as explained above) is a separate contract with the Supplier subject to these terms and conditions even if more than one quote is attached to the same Supplier email and accordingly, by way of example, any material breach of one contract does not entitle the other party to terminate another contract.
3.4 Unless otherwise agreed in writing, the Supplier is not obliged to supply any Services requested by the Client which are in addition to those specified on the Quote. If the Supplier does so agree, it is entitled to charge extra for such Services at its then-standard rates.
4. Obligations of the Client
4.1 The Client shall:
4.1.1 promptly provide the Supplier with such information and media files as it may reasonably request for the proper performance of the Services; and
4.1.2 comply with the Supplier’s reasonable instructions and provide reasonable co-operation to the Supplier in supplying the Services; and
4.2 promptly provide to the Supplier any necessary edits, within the timeframes and according to the guidelines outlined at points 6.5, 6.6 and 7.
4.3 The Client shall comply promptly with its obligations under this agreement. If the Client delays in performing its obligation, then the period for the Supplier to perform its own related obligations shall be extended by a reasonable period which may be longer than the period of Client delay, for example if the Supplier has to arrange for a new Creator to carry out the work.
4.4 The Client agrees to make backups of Client Source Material supplied to the Supplier. The Supplier is not liable for loss or damage to the Client Source Material.
5. Shooting and events
5.1 For the avoidance of doubt, the Supplier is only required to supply the Services at the Venue on the agreed date and for the specified period. Any cancellation or change by the Client is subject to the Supplier’s agreement in writing and to payment of any additional applicable fees.
5.2 The Client acknowledges that the Supplier is entitled without liability to withdraw from any Venue and suspend any Services immediately if the Supplier has any concerns as to the safety or security of its personnel staff or equipment.
5.3 The Supplier shall take reasonable steps to check that its equipment is in order in advance of the event but cannot guarantee that technical difficulties will not arise or that they can necessarily be resolved quickly or on the same day. The Supplier shall not be liable in such case.
5.4 Insofar as the Services are to be performed at a Client Venue, the Client:
5.4.1 shall notify the Supplier in writing before ordering Services if there are any timing, access or other relevant restrictions in relation to the Services;
5.4.2 is responsible for procuring all necessary filming and/or photographic permissions
5.4.3 shall take reasonable steps to ensure that the Client Venue is a safe and suitable location for the Supplier to provide its Services and to procure the safety of the Supplier’s personnel and equipment;
5.4.4 shall provide the Supplier with access to the Client Venue in sufficient time to enable installation and testing of the equipment.
5.5 The Client shall be liable for loss of or damage to the Supplier’s equipment at a Venue except insofar as due to the Supplier’s negligence. For each item lost or damaged, the Client shall pay to the Supplier the replacement value except insofar as varied in the Quote.
5.6 The Supplier shall not be liable for loss or damage caused to the Client Venue unless due to the deliberate act of the Supplier.
5.7 Insofar as the Services are to be performed at a Supplier Venue, the Client shall:
5.7.1 be responsible for the behaviour of its attendees and ensure that they behave in a reasonable and non-disruptive manner;
5.7.2 comply with any rules and regulations of the venue operator; and
5.7.3 comply with the reasonable requests of the Supplier and the venue operator.
6. Delivery of Supplier Materials by the Supplier
6.1 The Supplier shall use its reasonable endeavours to meet any timescales provided to the Client for delivery of Supplier Materials but does not guarantee that they will be achieved.
6.2 The Client acknowledges that all Supplier Materials will be supplied only in accordance with any format and specifications stated in the Quote.
6.3 Upon completion of the Services, a delivery version of the Supplier Materials at a low resolution containing a watermark will be produced as evidence of work completed. The Client, upon approval of the delivery version, must then make the outstanding payment to receive the final version of the Supplier Materials (i.e. final high resolution, watermark-free version of the photos or videos).
6.4 The Supplier Materials must not be used by the Client until the outstanding payment is made.
6.5 Any claims or edit requests must be made in writing to the Supplier within fourteen days of receipt of the final Supplier Materials.
6.6 If no claim or edit request is made within fourteen days, it is deemed that 1) the Client accepts the final Supplier Materials at the agreed price, and 2) the responsibility and safeguarding of the Supplier Materials are fully passed on to the Client. The Supplier and Creator are no longer liable for the Supplier Materials, or other materials used for the creation of the Services, and also reserve the right to delete all material associated with the project from servers and hard drives at any point in the future.
7. Editing
7.1 The Client is allowed to request up to 2 general revisions of the Supplier Materials during the editing process, within fourteen days of receipt of the final Supplier Materials. A general revision can be a list of edit requests organised in a document or an email.
7.2 Any additional services required such as but not limited to 1) re-shooting existing Supplier Materials or shooting additional photos/videos not mentioned in the original scope of the project 2) additional edits to the 2 general revisions 3) additional copies of the product or different formats not agreed in advance is subject to payment of any additional applicable fees.
7.3 The Client agrees that they have been given an opportunity to provide creative input to the Services prior to and/or during the shooting and/or the editing process. Any Client’s dissatisfaction with the final Supplier Materials on creative or artistic grounds does not constitute failure on the part of the Supplier to fulfil its obligations under this contract, nor does it offer the Client grounds on which to refuse to pay the full remuneration to the Supplier.
8. Payment
8.1 The Supplier’s prices and timescales in the Quote are based on information supplied by the Client. The Supplier reserves the right to change its prices or timescales in light of any additional information received from the Client. The Supplier is entitled to terminate this agreement without liability if the Client does not agree to the revised prices or deadlines.
8.2 The Client shall make a deposit payment equivalent to 50% of the total price agreed in the Quote immediately following this agreement, in order for the Services to be supplied. The Client shall make the outstanding payment (i.e., total price agreed minus deposit) within 7 days after the end of the shooting service or after delivery of the second general revision.
8.3 The Client shall pay the Supplier’s fees without any withholding, deduction, counterclaim or setoff.
8.4 The Supplier’s fees are exclusive of VAT or other applicable taxes.
8.5 In the event of late payment, the Supplier may charge interest on overdue sums (both before and after judgment) at the rate for the time being that would be applicable if the debt were a qualifying debt under the Late Payment of Commercial Debts (Interest) Act 1998.
8.6 To avoid doubt, even if the Client cancels some or all of the Services, the Client remains liable to pay the Supplier’s fee in full once booking of the Services is confirmed.
9. Suspension / Termination
9.1 The Supplier is entitled to suspend or terminate this agreement at any time by giving notice in writing to the Client if any of the Supplier’s fees are unpaid.
9.2 Without prejudice to any other right or remedy available to either party under this agreement or at law, either party (the ‘Innocent Party’) may terminate this agreement at any time and with immediate effect upon giving notice to the other party if:
9.2.1 the other party has committed a material breach of this agreement and has failed to remedy such breach within thirty (30) days of receipt of a notice in writing from the Innocent Party describing the breach and requiring its remedy; or
9.2.2 the other party suffers, or threatens to suffer, any form of bankruptcy, insolvency, receivership, administrative receivership, administration or is unable to pay its debts or makes any arrangement with creditors or applies for protection from creditors or passes a resolution for its winding up or ceases, or threatens to cease, to carry on business or any event occurs which is substantially similar to any of the foregoing.
9.3 On termination of this agreement for any reason:
9.3.1 accrued rights and liabilities shall be unaffected; and
9.3.2 all terms shall survive which are expressed or intended to survive termination as well as any terms
necessary for the interpretation or enforcement of this agreement.
10. Warranties
10.1 Both parties warrant that they will comply with all Applicable Laws in connection with this agreement and that they shall not infringe third party or other rights.
10.2 Subject to the terms of this agreement, the Supplier warrants that it shall supply the Services with reasonable skill and care. Notwithstanding the foregoing, the Supplier does not warrant that the Services will be uninterrupted or error-free.
11. Limitation of liability and indemnity
11.1 Any provisions in this agreement excluding or limiting liability will apply regardless of the form of action, whether under statute, in contract or tort including negligence or otherwise. Such provisions apply to and may be enforced by the relevant party’s directors, officers, employees, subcontractors, agents and affiliated companies as well as to the party itself and those parties will have the benefit of such provisions in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this agreement in any way excludes or restricts either party’s liability for negligence causing death or personal injury or for fraudulent misrepresentation or for any liability which may not legally be excluded or limited.
11.2 The Client irrevocably waives (i.e., gives up) any right to dispute payment of any invoice unless the Client raises a dispute by notice in writing to the Supplier within 14 days of the date of the invoice.
11.3 The Supplier shall not be liable for any loss or damage in circumstances where:
11.3.1 there is no breach of a legal duty owed to the Client by the Supplier;
11.3.2 such loss or damage was not reasonably foreseeable (meaning it was not an obvious consequence of the Supplier’s breach or was not contemplated by the Supplier and Client when they entered into this contract);
11.3.3 such loss or damage owes to any cause beyond reasonable control, such as total failure of equipment or computer system, sudden illness or injury, victim of crime, fire or flooding, a natural disaster;
11.3.4 such loss or damage is caused by the Client, for example by not complying with this agreement; or
11.3.5 such loss or damage relates to a business of the Client.
11.4 The Client will be liable for any reasonably foreseeable loss or damage suffered by the Supplier arising from the Client’s breach of this agreement (including claims made by other people) resulting from the Client’s breach of this agreement.
11.5 The total aggregate liability of the Supplier of any kind (including for negligence) for any act or omission or series of connected acts or omissions with respect to the Services shall in no circumstances exceed the total fees paid or payable by the Client to the Supplier under this agreement in connection with the relevant Services.
11.6 The Supplier shall not in any event be liable for any
11.6.1 economic losses (including, without limit, loss of revenues, profits, contracts, business or anticipated savings);
11.6.2 loss of goodwill or reputation;
11.6.3 special, indirect or consequential losses; or
11.6.4 damage to or loss of data.
11.7 To the extent allowed by law, both parties exclude all terms, whether imposed by statute or by law or otherwise, that are not expressly stated in this agreement.
11.8 The Client shall indemnify the Supplier against all claims and liabilities directly or indirectly related to the Supplier’s breach of this agreement.
12. Intellectual Property Rights
12.1 The Client licenses the Supplier to use and alter the Client Source Materials insofar as necessary for the purposes of the Services. The Client warrants that it has the right to grant such a licence and that such use shall not infringe any third-party intellectual property rights.
12.2 The Client assigns to the Creator and Supplier ownership of the copyright and other intellectual property rights of the Supplier Materials. Use of the Supplier Materials is granted and may also be granted to third parties, providing this happens lawfully, within this agreement and without damage to the Creator and Supplier. However, the Supplier Materials will remain the property of the Creator and Supplier.
12.3 Unless the Client requests the Supplier in writing not to do so, the Supplier is entitled to use the Client’s name and the Supplier Materials supplied to the Client on its website, social media profiles or in other promotional materials, as an example of a client who the Supplier has worked for or as an example of Services supplied.
12.4 This section of the agreement shall survive termination.
13. Confidentiality
13.1 Each party shall keep in confidence any information in any form (including oral) of a confidential nature relating to the other party obtained in connection with this agreement and shall not without the prior written consent of such other party use that information other than for the purposes of this agreement or disclose it to any person other who needs to know the information for the purposes of this agreement.
13.2 This clause shall not apply to:
13.2.1 information which becomes public knowledge has been published other than through a breach of this agreement;
13.2.2 information lawfully in the possession of the recipient before the disclosure took place;
13.2.3 information obtained from a third party who is free to disclose it; and
information which a party is requested to disclose and if it did not could be required by law or regulation 13.2.4 or competent authority to do so.
13.3 This section of the agreement shall survive termination.
14. Data Protection
14.1 The parties shall comply with GDPR regulations.
15. Non-solicitation
15.1 The Client undertakes that it shall not during this agreement, nor during the period of 24 months following the termination of this agreement either on its own account or in conjunction with or on behalf of any other person, firm or company, solicit, employ, engage or entice away or attempt to do so (a) any employee of the Supplier or of any company which is a subsidiary or parent of the Supplier or under common ownership with it or (b) any Creator used by the Supplier to supply the Services.
16. General
16.1 This agreement (and any document incorporated herein) constitute the entire agreement between the parties with respect to its subject matter and supercedes any previous communications or agreements between the parties in relation to such matters. Both parties acknowledge that there have been no misrepresentations and that neither party has relied on any pre-contractual statements. Liability for misrepresentation (excluding fraudulent misrepresentation) relating to the terms of this agreement is excluded.
16.2 Neither party is liable for failure to perform or delay in performing any obligation (excluding payment) under this agreement if the failure or delay is caused by any circumstances beyond that party’s reasonable control including third-party telecommunication failures and epidemics / pandemics.
16.3 Any notice required by this agreement to be given by any party in writing may be given by hand or sent (by special delivery within the UK or by international signed for post outside the UK) to another party at its registered office or such other address as that party may notify to the other party for this purpose from time to time or, unless stated otherwise, by email.
16.4 No amendment or variation of this agreement shall be effective unless in writing, expressed to be an amendment to this agreement and signed by a director of the Supplier.
16.5 The Client may not assign any of its rights or obligations under agreement without the prior consent in writing of the other not to be unreasonably withheld or delayed.
16.6 The failure of a party to exercise or enforce any right under this agreement shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
16.7 If any provision of this agreement is held to be unlawful, void or unenforceable in whole or in part, this agreement shall continue in force in relation to the unaffected provisions.
16.8 Save insofar as expressly provided otherwise in this agreement, no third party may enforce any clause in this agreement under the Contracts (Rights of Third parties) Act 1999.
16.9 The relationship of the parties is that of independent contractors. Except as otherwise stated in this agreement, nothing in this agreement shall constitute the parties as partners, joint venturers or co-owners, or constitute any party as the agent, employee or representative of the other(s), or empower any party to act for, bind or otherwise create or assume any obligation on behalf of the other(s), and no party shall hold itself out as having authority to do the same.
16.10 This agreement shall be governed by the laws of England and each party hereby submits to the exclusive jurisdiction of the English courts.