TERMS AND CONDITIONS OF BUSINESS
1. Basis of contract
1.1 The Quotation constitutes an offer by the Company to supply Services in accordance with these Conditions.
1.2 The Quotation shall be deemed to be accepted by the Client when either: (i) the Client issues written confirmation of the Quotation to the Company (including via email); or (ii) the Company begins to supply Services to the Client (whichever is the earlier), at which point and on which date the Contract shall come into existence (Commencement Date).
1.3 Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
1.4 The Contract applies to the Services and the Company’s engagement by the Client to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
1.5 Any quotation given by the Company is only valid for a period of twenty (20) Business Days from its date of issue and may be subject to change following a site visit. In the event of the Client, for whatever reason, withdrawing instructions to the Company prior to the acceptance of the Quotation, the Company reserves the right to make a reasonable charge to the Client for any services rendered in respect of consultation, advice, planning or work undertaken.
2. Supply of Services
2.1 Subject to these Conditions, the Company shall supply the Services to the Client in accordance with the Quotation in all material respects.
2.2 The Company shall use all reasonable endeavours to meet any performance dates specified in Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
2.3 The Company reserves the right to amend the Quotation (including the Fees set out thereunder): (a) if necessary to comply with any applicable law or regulatory requirement; (b) if the amendment will not materially affect the nature or quality of the Services; and/or (c) if the amendment is necessary due to the unavailability of equipment, staffing, decoration, security, AV equipment, menus, drinks, printing, photography, videography, transport or any other items or services supplied by the Company (including any third party personnel, products or services relevant to the Services) in which case the Company shall use all reasonable endeavours to procure an adequate replacement. The Company shall notify the Client in any such event and provide the amended Quotation, and the Client shall be deemed to have accepted the amended Quotation notified to it by the Company on receipt.
2.4 The Company warrants to the Client that the Services will be provided using reasonable care and skill.
2.5 If the Company is required to apply to a third party for any form of licence, permission or consent (including from any government or local council) on the Client's behalf as part of the Services, the Company shall not be responsible for the outcome of such application.
3. Client's obligations
3.1 The Client shall:
(a) ensure that the terms of the Quotation are complete and accurate;
(b) ensure that all instructions from the Client are confirmed in writing. The Company accepts no responsibility for any misunderstanding arising through order or instructions received verbally;
(c) co-operate with the Company in all matters relating to the Services;
(d) where the Services are to be provided at the Client’s premises provide the Company, its employees, agents, consultants and subcontractors, with access to the Client's premises, office accommodation and other facilities as reasonably required by the Company;
(e) provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(f) prepare the Client's premises for the supply of the Services (where the Services are to be provided at the Client’s premises);
(g) ensure that if electrical generators or additional power supplies are required in connection with the Services, it shall also engage and pay for the Company to provide an emergency supply (where this is available);
(h) where requested by the Company (for example in relation to catering), notify the Company of the exact number of guests for the relevant Services no later than 4 Business Days prior to the delivery date for such Services, unless otherwise agreed in writing; and
(i) comply with any additional obligations as set out in the Quotation.
3.2 All equipment supplied to the Client by the Company as part of the Services (whether such equipment is owned by the Company or a third party) shall at all times be exclusively at the risk of the Client from the time of delivery until collection from the venue set out in the Quotation. The Client should in their own interest, ensure that all such equipment is insured for all relevant risks. If the Company is required to use equipment provided by the Client in its provision of the Services, to the maximum extent permitted by applicable law, the Company accepts no liability for any breakages that may occur.
3.3 If the Company's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Company's performance of any of its obligations;
(b) the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company's failure or delay to perform any of its obligations as set out in this clause 3.3; and
(c) the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.
4. Fees and payment
4.1 The Company shall invoice the Client for the Services in accordance with the payment schedule set out in the Quotation (Fees).
4.2 The Company shall be entitled to require a deposit from the Client representing up to the estimated total cost of the Services set out in the Quotation (Deposit). If so requested by the Company, the Deposit will be due and payable by the Client not less than six (6) weeks before the date of the build of the project set out in the Quotation. The Company shall be entitled to treat failure by the Client to pay the Deposit in accordance with this clause 4.2 as repudiation of the Contract.
4.3 The Company shall also be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Company engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Company for the performance of the Services, and for the cost of any materials.
4.4 The Client shall pay each invoice submitted by the Company:
(a) within 14 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Company, and
(c) time for payment shall be of the essence.
4.5 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
4.6 If the Client fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company's remedies under clause 8, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 4.6will accrue each day at 6% a year above the Bank of England's base rate from time to time, but at 6% a year for any period when that base rate is below 0%.
4.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5. Intellectual property rights
5.1 As between the parties, all Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by the Company.
5.2 The Client grants the Company a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Company for the term of the Contract for the purpose of providing the Services to the Client.
5.3 The Company shall be permitted to: (i) take photos and film footage of the Services from the Client’s event; and (ii) use such images and footage showing the Services for marketing purposes at its discretion, provided that any use on social media shall only be permitted 48 hours after completion of the Services. The Company shall ensure that any images or footage used for marketing purposes will not show the faces of any guests from Client’s event unless written permission has been given by the guest or the Client.
6. Data Protection
6.1 For the purposes of this clause 6, the terms Commissioner, controller, data subject, personal data, personal data breach, processor and processing, and supervisory authority shall have the meaning given to them in Data Protection Laws.
6.2 Both parties will comply with all applicable requirements of Data Protection Laws. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Laws.
6.3 The parties have determined that, in respect of any personal data processed under this Contract, the Company shall process the personal data as processor on behalf of the Client.
6.4 Without prejudice to the generality of clause 6.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Company and lawful collection of the same by the Company for the duration and purposes of this Contract.
6.5 The details of the Company’s processing of personal data for the purposes of this Contract are as follows:
(a) the duration of such processing: from the Commencement Date until the expiry or earlier termination of the Contract;
(b) the types of personal data which are to be processed: Client personnel and guests of the Client’s event;
(c) the categories of data subject to whom such data relates: name, email address and phone number; and
(d) the nature of the processing: provision of the Services.
6.6 Without prejudice to clause 6.2, the Company shall, in relation to the personal data:
(a) process that personal data only on the documented instructions of the Client, unless the Company is required by Data Protection Laws to otherwise process that personal data in which case the Company shall notify the Client of this before performing the processing required by the Applicable Data Protection Laws unless those Applicable Data Protection Laws prohibit the Company from so notifying the Client;
(b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the personal data and against its accidental loss, damage or destruction. The Client has reviewed these measures and has accepted that they are appropriate taking account of the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the personal data transmitted, stored or otherwise processed;
(c) ensure that that all personnel engaged or authorised by the Company who have access to and/or process personal data are obliged to keep the personal data confidential;
(d) assist the Client as far as is reasonable (and at the Client’s cost) in responding to any request from a data subject and in ensuring compliance with the Client’s obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with the Commissioner, supervisory authorities or other regulators and, in particular, the Company shall promptly notify the Client if it receives any complaint, notice or communication (whether from the Commissioner, any data subject, supervisory authority or other third party) which relates to processing of personal data;
(e) notify the Client without undue delay after becoming aware of a personal data breach and shall, at the Client’s cost, provide reasonable information on such breach and any investigations in relation to it;
(f) at the written direction of the Client, delete or return to the Client all personal data processed under this agreement on termination of this agreement unless the Company is required by Applicable Data Protection Laws to continue to process that personal data, in which case the Company shall notify the Client of the same. For the purposes of this clause 6.6(f) the obligation to "delete" data includes the obligation to delete data from back-up systems as well as live systems; and
(g) maintain adequate records, and, on the Client's request and at the Client’s cost, make available such information as the Client may reasonably request to demonstrate its compliance with Applicable Data Protection Laws and this clause 6.
6.7 The Client provides its prior, general authorisation for the Company to:
(a) appoint any other processor or transfer any personal data to the same provided that the Company shall: (i) ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Company in this clause 6; and (ii) inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Company's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify the Company for any losses, damages, costs (including legal fees) and expenses suffered by the Company in accommodating the objection; or
(b) carry out, via itself or via any other processor, any processing of personal data, or transfer any personal data, outside of the UK, provided that the Company shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of the Company, including any request to enter into standard data protection clauses required to comply with Applicable Data Protection Law.
7. Limitation of liability: THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
7.1 References to liability in this clause 6 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
7.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
7.3 Nothing in this clause 6 shall limit the Client's payment obligations under the Contract.
7.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.5 Subject to clause 7.2 (No limitation in respect of deliberate default), and clause 7.4 (Liabilities which cannot legally be limited), the Company's total liability to the Client for all loss or damage shall not exceed the Fees actually received by the Company.
7.6 Subject to clause 7.2 (No limitation in respect of deliberate default), clause 7.3 (No limitation of Client's payment obligations) and clause 7.4 (Liabilities which cannot legally be limited), this clause 7.6 sets out the types of loss that are wholly excluded: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of use or corruption of software, data or information; (f) loss of or damage to reputation or goodwill; and (g) indirect or consequential loss.
7.7 The Company has given commitments as to compliance of the Services with relevant specifications in clause 2. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.8 The Client undertakes to inform the Company’s representative of any breach of the Company’s obligations in relation to the Services as reasonably practicable and to confirm the same in writing within 48 hours.
7.9 The Client shall indemnify the Company and its subcontractors against all loses, damages, reasonable costs or expenses and other liabilities (including reasonable legal fees) incurred by or awarded against the Company by reason of all claims for loss of or damage to property or equipment or in respect of personal injury to any guest at Client’s event, in each case howsoever caused, otherwise than due to the negligence of the Company or (in the case of property or equipment) fair wear and tear, or faulty materials or workmanship.
7.10 This clause 6 shall survive termination of the Contract.
8.1 The Contract shall expire the day after the completion of the Services by the Company. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 Without affecting any other right or remedy available to it, the Company may suspend the supply of Services under the Contract or any other contract between the Client and the Company if:
(a) the Client fails to pay any amount due under the Contract on the due date for payment; or
(b) the Client becomes subject to any of the events listed in clause 8.1(c) or clause 8.1(d), or the Company reasonably believes that the Client is about to become subject to any of them.
8.3 If the Client elects to terminate the Contract or any part of the Services after the Commencement Date other than pursuant to clause 8.1, it must notify the Company in writing and the Client shall pay the Company all reasonable costs and expenses incurred by the Company on the Client’s behalf up to and including the date of termination in respect of the Contract or such Services (as applicable) (including any cancellation costs incurred by the Company), plus an additional charge of fifteen (15) percent of such amount.
9. Consequences of termination
9.1 On termination or expiry of the Contract:
(a) the Client shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt; and
(b) the Client shall return all of the materials provided by the Company and any deliverables which have not been fully paid for. If the Client fails to do so, then the Company may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
9.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
9.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
10.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract (with the exception of the obligation to pay the Fees) if such delay or failure result from events, circumstances or causes beyond its reasonable control (including, in the case of the Company, without limitation: (a) the ongoing COVID-19 sanitary crisis (notwithstanding that this started prior to the Commencement Date); (b) the acts or omissions of the Client or any third party with whom the Company does not have a contractual relationship; and (c) the failure to obtain any licence, permission or consent as referred to in clause 2.5). In the event of frustration of the contract due to such circumstances, the Contract shall be deemed to be complete and upon the Company giving notice to that effect the Client shall be liable to indemnify the Company and pay it a sum equivalent to the aggregate of costs incurred by the Company in labour and materials, sub-contracts and incidentals up to the date of such notice together with an additional 10% charge.
10.2 Assignment and other dealings.
(a) The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Company.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.3(b).
(b) Each party may disclose the other party's confidential information: (i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 10.3; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
10.4 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
10.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
10.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 10.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
10.8 Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be sent by: (a) email to the email address(es) of each party specified in the Quotation; and/or (b) text message or WhatsApp message to the number of each party specified in the Quotation.
10.9 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
10.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
10.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Company: INGENIUS PRODUCTIONS LIMITED, registered in England and Wales with registered address Unit 16 Wimbledon Stadium, Business Centre Riverside Road, London, SW17 0BA and company number 03131780.
Conditions: these terms and conditions as amended from time to time in accordance with clause 10.4.
Contract: the contract between the Company and the Client for the supply of Services, consisting of the Quotation and these Conditions.
Client: the person or firm who purchases Services from the Company.
Data Protection Laws: any data protection, privacy or similar laws that apply to data processed in connection with this Contract, including the EU General Data Protection Regulation 2016/679 (“GDPR”), Data Protection Act 2018, the UK GDPR (being GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018) or Privacy and Electronic Communications Directive 2002/58 or any amendments to them or replacements of them, including, without limitation, any other variations as may be required following or pursuant to Brexit.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Quotation: the Client's order for Services as set out in the Company's quotation.
Services: the services, including any deliverables, supplied by the Company to the Client as set out in the Quotation.
11.2 Interpretation: (a) words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; and (b) reference to writing or written includesemail.