TRB CINEMATOGRAPHY TERMS & CONDITIONS
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(1) INTERPRETATION
The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
Client: the person, firm or company who purchases Services TRBC.
Client’s Equipment: any equipment, systems, cabling or facilities provided by the Client and used directly or indirectly in the supply of the Services.
Contract: Instruction Form and TRBC’s acceptance of it together with the agreement and these Conditions.
Deliverables: all documents, products and materials developed by in relation to the Services in any form, including any Event DVD’s, Blu-ray discs as defined in the agreement.
Deposit: the deposit stipulated in the agreement.
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture, photograph, print, transparencies, negatives, digital scans, digital files, video, artwork, montages, drawings, engravings or other image, tape, disk, CD-Rom, DVD or other device or record embodying information in any form.
Event: the event at which TRBC is required to provide the Services as stipulated in the agreement.
Event Date: the date on which the Event is held as stipulated in the agreement.
Event Premises: the premises at which the Event is held at as stipulated in the agreement.
Instruction Form: the form signed by the Client instructing TRBC to provide the Services.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Trb Cinematography: TRBC
Trb Cinematography’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by TRBC or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Client.
Project: the project as described agreement.
Project Plan: the detailed plan annexed to the Instruction Form describing the Project and setting out the estimated timetable and responsibilities for the provision of the Services agreed in accordance with condition 3.
Services: the services to be provided by TRBC under the Contract as set out in the Project Plan, together with any other services which TRBC provides, or agrees to provide, to the Client.
Specific Requirements Information: all Documents, information and materials provided by the Client relating to the Services including (without limitation) the specific requirements information listed in the agreement.
(1.1) Headings in these conditions shall not affect their interpretation.
(1.2) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(1.3) A reference to writing or written includes faxes and e-mail.
(1.4) Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
References to conditions and schedules are to the conditions and schedules of the Contract.
(2) APPLICATION OF CONDITIONS
(2.1) These Conditions shall:
(2.2) apply to and be incorporated into the Contract; and
(2.3) prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s purchase order or other Document supplied by the Client, or implied by law, trade custom, practice or course of dealing.
(2.2 ) The Instruction Form signed by the Client, or the Client’s acceptance of a quotation for Services by TRBC, constitutes an offer by the Client to purchase the Services specified in it on these Conditions. No offer placed by the Client shall be accepted by TRBC other than:
(a) by a written acknowledgement issued and executed by TRBC; or
(b) (if earlier) by TRBC starting to provide the Services, when a contract for the supply and purchase of the Services on these Conditions will be established. The Client’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
(2.3) Quotations are given by TRBC on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that TRBC has not previously withdrawn it.
(3) COMMENCEMENT AND DURATION
(3.1) The Services supplied under the Contract shall be provided by TRBC to the Client from the date specified in the agreement.
(3.2) The Services supplied under the Contract shall continue to be supplied until the Project is completed in accordance with the agreement.
(4) AGREEMENT
The agreement shall be annexed to the Instruction Form and the Client’s signature of the Instruction Form will be taken as its agreement to the provisions of the agreement.
(5) CINEMATOGRAPHER’S OBLIGATIONS
(5.1) TRBC shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Client, in accordance in all material respects with the agreement.
(5.2) TRBC shall use reasonable endeavours to meet any performance dates specified in the agreement, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
(6) CLIENT’S OBLIGATIONS
(6.1) The Client shall:
(a) co-operate with TRBC in all matters relating to the Services;
(b) provide TRBC, in a timely manner and at no charge, with access to the Event Premises required by TRBC;
(c) provide to TRBC, in a timely manner, such In-put Material and other information as TRBC may require and ensure that it is accurate in all material respects;
(d) be responsible (at its own cost) for preparing and maintaining the Event Premises for the supply of the Services, including identifying, monitoring, removing and disposing of any hazardous materials from the Premises in accordance with all applicable laws, before and during the supply of the Services at the Premises, and informing TRBC of all of the Client’s obligations and actions under this condition 6.1(d).
(6.2) If TRBC performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, TRBC shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
(6.3) The Client shall be liable to pay to TRBC, on demand, all reasonable costs, charges or losses sustained or incurred by TRBC (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to TRBC confirming such costs, charges and losses to the Client in writing.
(7) CHARGES AND PAYMENT
(7.1) In consideration of the provision of the Services by TRBC, the Client shall pay the charges as set out in the agreement.
(7.2) The Client shall pay the Deposit to TRBC in accordance with the agreement. TRBC’s performance of the Services is strictly subject to payment of the Deposit and TRBC’s attendance at an Event is not guaranteed until the Deposit is received.
(7.3) The Client shall pay each invoice submitted to it by TRBC, in full and in cleared funds, within 14 days of receipt to a bank account nominated in writing by TRBC.
(7.4) Without prejudice to any other right or remedy that it may have, if the Client fails to pay TRBC on the due date, TRBC may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgement and the Client shall pay the interest immediately on demand; and
(b) suspend all Services until payment has been made in full.
(7.5) Time for payment shall be of the essence of the Contract.
(7.6) All sums payable to TRBC under the Contract shall become due immediately on its termination, despite any other provision. This condition 7.6 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
(7.7) TRBC may, without prejudice to any other rights it may have, set off any liability of the Client to TRBC against any liability of TRBC to the Client.
(7.8) Where a bespoke payment plan is put together it’s important cleared payments are received as per schedule other wise this will invalidate this agreement. And all monies paid will not be refundable and remaining balance will have to be paid in full plus interest charges at 8%
(8) INTELLECTUAL PROPERTY RIGHTS
(8.1) As between the Client and TRBC, all Intellectual Property Rights and all other rights in the Deliverables shall be owned by TRBC absolutely.
(8.2) TRBC shall grant a licence to the Client of such rights as are necessary to make private use of the Deliverables.
(8.3) The Client may not reproduce any Documents provided by TRBC without the written consent of TRBC who may require a fee to be paid before granting consent.
(8.4) Unless specifically otherwise agreed in writing between TRBC and the Client TRBC is entitled to use copies of the Documents provided to the Client for advertising, marketing and promotion of TRBC’s business.
(9) LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
(9.1) This condition 7 sets out the entire financial liability of the Client in respect of:
(a) any breach of the Contract;
(b) any use made by the Client of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
(9.2) TRBC will be entitled to use its judgement regarding the style and artistic input in the production of any Deliverables and accepts no liability for any dissatisfaction the Client should have with the production or presentation of any Deliverables.
(9.3) All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
(9.4) Nothing in these Conditions limits or excludes the liability of TRBC
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by TRBC; or
(c) for any liability incurred by the Client as a result of any breach by TRBC of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services act 1982.
(9.5) Subject to condition 9.2 and condition 9.3
(a) TRBC shall not be liable for:
(i) loss of use; or
(ii) loss of corruption of data or information; or
(iii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) TRBC’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 price paid for the Services.
(10) DATA PROTECTION
The Client acknowledges and agrees that personal data will be processed by and on behalf of TRBC in connection with the Services.
(11) TERMINATION
(11.1) Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;or
(b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract.
(11.2) On termination of the Contract for any reason:
(a) the Client shall immediately pay to TRBC all of its outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, TRBC may submit an invoice, which shall be payable immediately on receipt; and
(b) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
(11.3) Either party may terminate the Contract at any time by giving written notice to the other party. However if one party should terminate the Contract less than 6 months before the Event Date for a reason not provided for under condition 11.1 then the other party will be entitled to:
(a) in the case of TRBC, retain any Deposit received; or
(b) in the case of the Client, be paid a sum equivalent to the Deposit.
(11.4) On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
(a) condition 8;
(b) condition 7;
(c) condition 9; and
(d) condition 19.
(12) CLIENT CONFIDENTIALITY
TRBC will keep confidential and will not disclose to any third parties or make use of material or information communicated to TRBC in confidence for the purposes of the Project, save as may be reasonably necessary to enable TRBC to perform the Services.
(13) FORCE MAJEURE
TRBC shall have no liability to the Client under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers.
(14) VARIATION
(14.1) TRBC may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
(14.2) Subject to condition 14.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
(15) WAIVER
(15.1) A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
(15.2) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(16) SEVERANCE
(16.1) If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(16.2) If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
(17) ENTIRE AGREEMENT
(17.1) The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
(17.2) Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
(17.3) Nothing in this condition shall limit or exclude any liability for fraud.
(18) ASSIGNMENT
(18.1) The Client shall not, without the prior written consent of TRBC, assign, transfer, charge, mortgage, subcontract or deal in any manner with all or any rights or obligations under the Contract.
(18.2) TRBC may at any time, with the consent of the Client, consent not to be unreasonably witheld, assign or transfer any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(19) RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
(20) NOTICES
(20.1) Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party.
(20.2) Any notice shall be deemed to have been duly received if delivered personally, when left at the address of the other party (as stipulated in the Instruction Form) if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
(20.3) This condition 18 shall not apply to the service of any proceedings or other documents in any legal action.
(21) GOVERNING LAW AND JURISDICTION
(21.1) The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with English law.
(21.2) The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).