1. Definitions and Interpretation
1.1 In these Terms and Conditions for Provision of Services (“Terms”):
“Budget” means the budget for the Services (including the Costs and the Production Fee) as set out in the Proposal or as amended in writing in accordance with these Terms
“Client” means the entity engaging QFP to perform the Services, as named in the Proposal and/or the Client Confirmation
“Client Materials” means all materials in whatever form supplied by the Client to QFP or which the Client requires QFP to acquire on its behalf
“Client Confirmation” means the written acceptance submitted by the Client to QFP placing an order for Services in relation to a Proposal
“Confidential Information” means all information belonging to a party (howsoever recorded, preserved or disclosed) disclosed by one party (“Discloser”) to the other (“Recipient”) which relates to the business, marketing, plans, clients, suppliers, activities, personnel, or finances of that party and any other information which a party informs the other party in writing is confidential or commercially sensitive, but shall not include information which: (1) Recipient can prove was in its possession prior to disclosure by the Discloser, or (2) is or becomes part of the public domain other than by any breach of these terms, or (3) is lawfully disclosed to Recipient by a third party.
“Contract” means the agreement between the Client and QFP for the supply of the Services and consisting of the documents referred to in clause 1.5 below.
“Costs” means the third-party costs incurred by QFP in performing the Services as set out in the Budget.
“Deliverables” means all materials, work and information forming part of the Services and created by or for QFP for the purpose of performance of the Services, but specifically excluding Client Materials.
“Intellectual Property” means any and all copyright and related rights, trademarks, patent, utility models, design rights, rights in goodwill or to sue for passing off, rights in computer software, 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 (and rights to apply) for, and renewals or extensions of, 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.
“Location” means the geographical location for the provision of the Services as specified in the Proposal.
“Production Fee” means the price for the Services provided by QFP as set out in the Proposal and otherwise agreed in writing between the parties.
“Proposal” means the document prepared by QFP setting out the Services, the Location, the Budget, the Deliverables, the Client Materials and all other information required for the performance of the Services
“QFP” means Quite Frankly Productions Limited (company number: 4941188) whose registered office is at Studio 02, 25 Easton Street, London WC1X 0BE.
“Services” means the production and broadcast public relations services agreed to be provided by QFP as set out in the Proposal or as otherwise agreed in writing by QFP.
1.2 Clause headings shall be ignored in interpretation; the singular includes the plural and vice versa.
1.3 Any provision of these Terms which is invalid or unenforceable for any purpose shall be removed from these Terms for that purpose but shall otherwise remain valid and enforceable and shall not affect the validity of the remainder of the Contract.
1.4 Payments will be deemed made to QFP when they have been credited to QFP‘s account in cleared funds.
1.5 The Contract comprises these Terms, the Client Confirmation and the Proposal.
1.6 These Terms shall have priority over the other Contract documents unless the Proposal specifically amends a provision of these Terms.
1.7 Your issuance of or continuing instructions in respect of any Proposal constitutes acceptance and agreement by you of these Terms.
2. Formation of Contract and Rights to Vary or Cancel
2.1 Client Confirmations shall not be deemed accepted by QFP (nor a Contract formed) until either (1) signed or acknowledged in writing (including by email) by QFP or (2) QFP commences work in respect of the relevant order.
2.2 No representations made by QFP’s employees will apply to the Contract unless they are confirmed in writing. In entering into the Contract Client acknowledges that Client has not relied on any such representations.
2.3 Client is responsible for ensuring the accuracy of the Client Confirmation submitted and for giving QFP any necessary information and Client Materials within a sufficient time to enable QFP to perform the Contract.
2.4 QFP reserves the right to make any changes to Services if necessary to comply with any applicable law, regulation or safety requirement and to vary the Production Fee by a fair and reasonable amount to take account of the variation. QFP will inform the Client of any such variation and of its effect, if any, on the Budget, as soon as reasonably practicable.
2.5 Client may cancel a Contract by notice in writing to QFP. If Client cancels the Services within 72 hours of the due date for performance QFP may charge Client any reasonable and non-refundable costs incurred by QFP (such as non-refundable location or other booking fees, costs or deposits).
2.6 If QFP cancels the Contract other than pursuant to clause 9, it will repay all monies received from the Client.
2.7 If the Client wishes to make an amendment to the Proposal Client should request the amendment in writing (including by email) and QFP will within a reasonable time let the Client know:
2.7.1 Whether it considers such amendment is reasonably practicable in all the circumstances; and if so
2.7.2 Whether it affects the Budget or any other terms or requirements relating to the Services.
If QFP considers in its discretion that any amendment is unsuitable for any reason it may refuse to accept such amendment and Client may in that event cancel the Contract pursuant to clause 2.5.
2.8 On receipt of the information from QFP in 2.7 Client shall have a reasonable period to confirm Client’s agreement to the change to the Proposal and the Budget. QFP may delay the performance of the Services or any part of them until it has received Client’s written confirmation that Client wishes either to proceed or not to proceed with the amendments in question.
3.1 If QFP gives Client a quotation, QFP may withdraw or modify that quotation at any time before Client submits a Client Confirmation. All quotations lapse thirty (30) days after issue.
3.2 The Client shall pay the Budget as set out in the Proposal and if the Budget is not set out in the Proposal such Budget as QFP shall charge in accordance with its usual practice and at its then current rates.
3.3 All prices are exclusive of Value Added Tax and any other sales tax or excise duties.
3.4 QFP reserves the right to increase the Budget before commencing or during the performance of the Services to reflect any change requested by Client as to any specifications for the Services, or to take account of any delay caused by Client or any failure by Client to perform Client’s obligations in these Terms or by Client’s failure to give QFP adequate information or instructions.
4. Payment Terms
4.1 Unless otherwise stated in the Client Confirmation, the Client must pay the Budget in full within thirty (30) days of the date of the relevant invoice.
4.2 Client may not make any withholding, deduction, set-off, counterclaim or cross-demand against an invoice other than in respect of a genuine dispute that Client has brought to QFP’s attention in writing (with reasonable details) before the due date for payment. In that case, the Client will pay the full amount not in dispute.
4.3 Time of payment is of the essence of every Contract.
4.4 QFP may (without limiting its remedies) charge Client for QFP’s costs of collection and (as well after as before judgment) a sum equal to any loss suffered by QFP arising from such delay as well as interest on such sum and on the amount overdue at the same rate as would apply were the debt a qualifying debt under the Late Payment of Commercial Debts (Interest) Act 1998 calculated from the date payment fell due until the date of actual payment (or such lesser amount as is the maximum rate permissible by law) and QFP may cancel the Contract and any other contracts with Client.
4.5 If Client fails to pay the Budget (or any instalment of the Budget) when due (other than by reason of a bona fide dispute which has been notified to QFP in writing upon receipt of the relevant invoice) QFP may suspend the Services (including delaying planning for the Services and purchasing of any goods or services required for the Services). If such delay causes a delay in the timetable for or cancellation of the Services, Client shall remain liable to pay the Budget and the time for performance of the Services will be extended to take account of the delay. In any event, Client shall pay QFP any increased costs incurred by QFP as a result of such delay and QFP may alter its payment and credit terms under the Contract as it considers appropriate.
5. Provision of Services
5.1 QFP shall use reasonable endeavours to:
5.1.1 Provide the Services in accordance with the Contract and perform the Services with all reasonable skill, care and diligence
5.1.2 Ensure all staff are suitably qualified and trained to carry out the Services; and
5.1.3 Adhere to any timetable or scheduled delivery dates specified in the Client Confirmation;
5.2 If Client is arranging or providing the Location, Client shall:
5.2.1 Grant QFP all reasonable access to the Location at times reasonably requested by QFP to enable QFP to assess the suitability of the Location and to prepare
for and perform the Services;
5.2.2 Ensure that the Location fully complies with the descriptions and terms set out in the Client Confirmation and is suitable and safe for the purposes of the Services; and
5.2.3 Advise QFP without delay of any changes to the Location prior to the date of the Services (and such changes shall be dealt with in accordance with clauses 2.7 and 2.8.
5.3 If in QFP’s reasonable opinion, the Location requested or provided by Client is not suitable for the Services in question for any reason, it may require an alternative Location to be provided at Client’s expense or it may cancel the Contract by notice in writing to Client (and in that event, it shall repay all monies paid by Client other than non-refundable booking fees or deposits paid to third parties incurred by QFP in relation to the Services).
5.4 Client warrants and undertakes in respect of Client Materials that they will not be unlawful, obscene, libellous or in any way contravene any law or code of practice or be inappropriate for general viewing by persons aged over eighteen years.
6. Intellectual Property
6.1 Subject to the licence granted in 6.2 all rights and Intellectual Property in the Deliverables shall remain the sole property of QFP (or its licensors) and nothing in these Terms shall be construed as an assignment or transfer of any Intellectual Property relating to the Deliverables.
6.2 Subject to payment in full of the Budget QFP hereby grants to Client a perpetual, non-exclusive, worldwide and royalty-free licence to use the Deliverables for the purpose(s) set out in the Proposal, or if no such purpose(s) are provided, for the purposes of marketing, promotion, public relations, internal communications or such other purpose as is agreed in writing by QFP.
6.3 The Client acknowledges and agrees that it has obtained all rights, permissions, clearances and licences necessary in relation to the Client Materials and the Services and that in particular, the Client Materials do not infringe the rights of any third party. The Client shall provide to QFP such information and evidence as it requires to substantiate that the Client has obtained such rights, permissions, clearances and licences.
6.4 The Client shall indemnify QFP against all claims, damages, fines, penalties, losses, costs, liabilities and expenses which it may suffer or incur which would not have been suffered or incurred had the Client complied with these Terms and with 6.3 in particular.
6.5 Nothing in these terms shall prevent QFP from re-using any concept, idea or material obtained or developed in the course of the Services.
7.1 Each party agrees and undertakes that Confidential Information disclosed by one party (“Discloser”) to the other (“Recipient”) shall be treated by the Recipient as confidential and the Recipient shall not disclose the Discloser’s Confidential Information to any third party (other than those third party sub-contractors engaged in the performance of the Services by QFP) nor use the Discloser’s Confidential Information other than in the provision of the Services without the written consent of the Discloser.
7.2 Clause 7.1 shall not apply to Confidential Information which the Recipient is ordered to disclose by a Court of competent jurisdiction.
8. Data Protection
8.1 If QFP processes any personal data on the Client’s behalf when performing its obligations under this Contract (“Client Personal Data“), the parties record their intention that the Client shall be the data controller and QFP shall be a data processor. QFP shall process Client Personal Data only on behalf of the Client, only for the purposes of performing this Contract and in accordance with instructions contained in this Contract or as received in writing from the Client from time to time.
8.2 Each party warrants and undertakes to comply with its respective obligations under applicable laws relating to data protection and privacy, and, without prejudice to the foregoing, neither party shall act or omit to act in a manner that will or is likely to result in the other party breaching its obligations under such applicable laws. The Client warrants that: (i) it has obtained all necessary consents and rights required in order to lawfully permit QFP to process the Client’s Personal Data as envisaged by this Contract, and (ii) all instructions provided to QFP in relation to the processing of Client Personal Data shall be lawful.
9. Limitations of Liability
9.1 Nothing in these Terms shall limit or exclude any liability of QFP which may not be limited or excluded by law, including without limitation liability for death or personal injury caused by QFP’s negligence or for fraud or fraudulent misrepresentation.
9.2 All warranties, conditions and other terms implied by statute or common law not expressly included within these Terms are to the fullest extent permitted by law excluded from the Contract.
9.3 Subject to clause 8.1, QFP shall have no liability (whether arising under contract, tort or for breach of statutory duty or otherwise) to the extent that such liability would not have arisen but for Client’s breach of the Contract, the Client Materials or pursuant to Client’s instructions in relation to the Services.
9.4 Subject to clause 8.1, QFP’s aggregate liability for all claims in relation to the Contract (whether in contract, tort or for breach of statutory duty or otherwise) shall not exceed the Production Fee received by QFP.
9.5 Subject to clause 8.1, QFP shall not be liable for any indirect, consequential or special damages or loss including, without limitation, disappointment, injury to feelings, loss of reputation, third-party liability, loss of anticipated benefit, loss of profit, business interruption or management time.
9.6 QFP shall not be liable for any failure to perform any or all of its obligations under the Contract by reason of any severe weather, fire, flood or other act of God, armed conflict, civil unrest, industrial action, order of public authority, terrorist act, pandemic or any cause whatsoever beyond its control. In such circumstances QFP, without prejudice to the accrued rights and remedies of each party, may terminate the Contract without liability for such termination and shall refund any element of the Budget paid in advance in respect of Services not performed at the date of termination less any non-refundable deposits, booking fees or other charges incurred by it at the date of such termination for the purposes of the Services.
10. Termination of the Contract
10.1 Either party may at any time terminate the Contract forthwith by written notice to the other if the other party fails to pay any amount due under these Terms on the due date for payment, or the other party commits a material breach of any term of the Contract (other than failure to pay any amount when due) and fails to remedy such breach within thirty (30) days of being notified in writing to do so.
10.2 Either party may terminate the Contract forthwith by written notice to the other if the other party is or is deemed to be, insolvent or steps are taken to:
10.2.1 Propose any composition, scheme or arrangement involving the other party and its creditors; or
10.2.2 Obtain an administration order or appoint any administrative or other receiver or manager of the party or any of its property or otherwise enforce any security over the party’s property, or repossess its assets; or
10.2.3 File a petition in bankruptcy, to wind up or dissolve the party, or sequestrate its estate or outside England, anything corresponding to any of the above occurs.
10.3 If the Contract is terminated, QFP (without prejudice to its other rights but subject to any relevant mandatory laws) may do any of the following:
10.3.1 Declare immediately payable (and so interest-bearing under clause 3) any sums due to it by Client, proceed against Client for the same and/or damages, and appropriate any payment by Client as represents sums due under the Contract;
10.3.2 Suspend further performance of any Contract and/or any credit granted to Client on any account.
10.4 Termination of the Contract shall not affect the accrued rights of the Client and QFP under the Contract.
11.1 No previous waiver of any breach of the Contract shall constitute any waiver of any right or remedy.
11.2 The Contract constitutes the entire agreement between the parties and supersedes all previous agreements between the parties relating to the Services.
11.3 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.4 QFP may assign, sub-contract, sub-licence or transfer all or any part of the Contract. The Contract may not be assigned by the Client without the written consent of QFP.
11.5 Clauses 1, 3, 4, 6, 7, 8, 9 and this clause 10 shall survive termination of the Contract.
11.6 A person who is not a party to the Contract has no right under the Contract (Rights of Third Parties) Act 1999 to enforce the Contract but this does not affect any right or remedy of a third party which is available apart from that Act.
11.7 The Contract shall be governed and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.