TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES IN THE UK
1. Interpretation
1.1. In these Terms and Conditions:
“Agreement” these Terms and Conditions, Billing Schedules, Project Budgets and Orders;
“Billing Schedule” means the schedule detailing dates by which payments shall be made by the Client to ProVision;
“Client” means the person, firm or company by whom the Order is placed with ProVision;
“Equipment” means any equipment, material or facilities required for the performance of an Order;
“Event” means the event that is the subject of an Order in respect of which the Services and Personnel are being supplied;
“Group Company” means (in relation to ProVision or the Client) the relevant company, its subsidiaries or holding company and its subsidiaries (as the terms subsidiary and holding company are defined in section 1162 of the Companies Act 2006);
“Intellectual Property Rights” means copyright and related rights, moral rights, trade marks and all other intellectual property rights, in each case whether registered or unregistered, and including all similar or equivalent rights or forms of protection in any part of the world;
“ProVision” means ProVision Events Limited trading as ProVision Events Ltd;
“Order” means the order for Services and/or Personnel as more fully described in the Order;
“Personnel” means any person, model, servant or agent, supplied by ProVision and subject to, or used in performance of the Order;
“Pre-existing Materials” means all documents, information and materials provided by ProVision relating to the Services which existed prior to the commencement of this Agreement, including but not limited to computer programmes, data, reports and specifications;
“Project Budget” means the detailed plan setting out the project parameters, billing schedules, scope of works, costings, and if applicable time analysis;
“Services” means all services commissioned by the Client which are the subject of the Order.
1.2. In these Conditions:
1.2.1. Reference to any statute or statutory provision includes a reference to that statute, or statutory provision, as from time to time amended, extended or re‑enacted;
1.2.2. Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporate; and (in each case) vice versa;
1.2.3. The headings to the clauses are for ease of reference only and shall not affect the interpretation or construction of the Conditions;
1.2.4. Reference to clauses are to the clauses of these Conditions.
2. Application of Terms
2.1. These Terms and Conditions shall apply to the supply of Services and/or Personnel to the Client by ProVision and shall apply to the exclusion of any other Terms and Conditions on which any acceptance has been given by the Client or subject to which the Order is purported to be accepted by the Client. No variation to the Order or this Agreement shall be binding unless agreed in writing between authorised representatives of ProVision and the Client.
3. Intellectual Property
3.1. The Intellectual Property Rights in any documents, plans, drawings, photographs, electronic recordings, data, designs, ideas or creative work, conventional and digital artwork or other processes prepared by ProVision on behalf of the Client in conjunction with the Order (“Works”), shall be the exclusive property of the Client upon full payment for the Order in accordance with the Billing Schedule. No vesting of any such Intellectual Property Rights in the Client shall occur unless and until full payment for the Order has been received by ProVision from the Client. Upon receipt of full payment ProVision hereby assigns the copyright in such Work to the Client with full title guarantee.
3.2. The Client acknowledges that any Intellectual Property Rights in Pre-existing Materials owned either by ProVision or a third party will remain the property of ProVision or the third party respectively.
3.3. The Client acknowledges that no assignment will be made of any Work commissioned by or obtained by ProVision from third parties in conjunction with the Order, unless specifically agreed by the third parties in writing, and at the Client’s expense. ProVision warrants that it will, however, obtain the right for the Client to use such third party Intellectual Property Rights in Works as contemplated in the Order.
3.4. Upon an assignment of Intellectual Property Rights in the Works, ProVision will irrevocably and unconditionally waive all moral rights in the Work supplied by ProVision and will take all necessary steps at the Client’s cost to ensure that all such rights are irrevocably waived in writing in favour of the Client. ProVision shall keep all Work secret and confidential and shall not disclose to any third party, or use any such Work other than for the purposes of carrying out this Order, except to the extent that it is permitted under clause 5 below.
3.5. The Client warrants that any of the Client’s Intellectual Property and its use by the Supplier for the purpose of providing the Services will not infringe the copyright of the Client or any third party and the Client shall indemnify defend and hold the Supplier harmless against any loss, damages, costs, expenses or other claims arising from any such infringement.
4. Restrictions
4.1. Subject to the provisions of clause 4.3 below, neither the Client nor any Group Company of the Client shall, directly or indirectly, for itself or on behalf of another, employ or engage, or offer to employ or engage any servant or agent of ProVision with whom it has had contact for the purposes of the Services within a period of 6 months from the date of completion of the Order.
4.2. Without ProVision’s prior written consent and subject to the provisions of clause 4.3 below, the Client will not contact, directly or indirectly, before, during or after the placing of an Order, any third party having an interest in this Order, including the person, firm or company which the Client may reasonably believe to be engaged by or contracted to ProVision in connection with the Services to be provided hereunder.
4.3. Clients will be charged an introductory fee where Personnel supplied by ProVision terminate their contract with ProVision and enter into direct employment with the Client. The fee shall be 20% of that employee’s aggregate contractual remuneration for the first year of their employment with the Client.
4.4. All Personnel supplied by ProVision for the performance of an Order are under a contract for services with ProVision.
5. Confidentiality
5.1. Each party undertakes to treat as confidential all information that may be disclosed by the other (the Discloser) or on the other’s behalf to it (the Recipient) in relation to the Order, whether disclosed orally or in writing. The Recipient will take all steps necessary to prevent such information from being disclosed to any third party, other than where such disclosure may be essential for the purposes of considering the proposals for placing a contract.
5.2. The provisions of clause 5.1 shall not apply to any information of the Discloser which:
5.2.1. Can be shown to have been in the possession of the Recipient free from an obligation of confidence prior to disclosure;
5.2.2. Is in the public domain other than through any default of the Recipient;
5.2.3. Subsequently becomes available to the Recipient from any legitimate source free from any obligation of confidentiality or non-use; or
5.2.3. is required to be disclosed to a court of competent jurisdiction, governmental body or applicable regulatory authority provided that the party under such duty to disclose shall give the other party as much prior notice of such disclosure as is reasonably practicable.
6. Standard of Performance
6.1. The Supplier shall supply the Services and the Personnel in accordance with the Order and Project Budget.
6.2. ProVision warrants that it will carry out the Services with reasonable care and skill.
6.3. ProVision shall ensure that all Personnel provided by it are appropriately qualified and have sufficient experience to enable them to carry out their duties in accordance with the Order.
6.4. ProVision shall ensure that the Services will comply with all applicable codes of practice or regulations, whether or not having the force of law.
6.5. Save as expressly set out herein, all other implied warranties, are hereby excluded to the fullest extent permitted by law.
7. Details of Services
7.1 The Project Budget shall be agreed in the following manner:
7.1.1. The Client shall provide ProVision with a request for a Project Budget, setting out the requirements and specifications of the Services, including a description of what work is to be done, the date by which it is requested to be started and finished, and other such information as ProVision may request to allow ProVision to prepare a draft Project Budget. This is commonly referred to as a brief.
7.1.2. ProVision shall, as soon as reasonably practicable, provide the Client with a draft Project Budget; and
7.1.3. ProVision and the Client shall discuss and agree the draft Project Budget and when it has been agreed they shall both sign a copy of it and it shall become subject to these Terms and Conditions;
7.1.4. ProVision shall charge for the preparation of the Project Budget on a time and materials basis as set out in the Billing Schedule;
7.1.5. Once the Project Budget has been agreed and signed by both parties no amendment shall be made to it unless the amendments are agreed in writing between the parties.
7.1.6. To enable ProVision to supply Services that are suitable it is essential that ProVision is provided with full details of the requirements of the Client and of the nature of the engagement. If ProVision does not receive such information it shall decide with absolute discretion on the type of Services to be supplied to the Client.
7.1.7. ProVision will dispose of all kit 1 day after the Event, unless the Client instructs ProVision to do otherwise before this date.
7.1.8. All costs incurred for destroying, storing and handling the Equipment will be charged back to the client by ProVision.
8. Client’s Obligations
8.1. The Client shall: (a) co-operate with ProVision in all matters relating to the Services; (b) provide, in a timely manner, such information as ProVision may require, and ensure that it is accurate and complete in all material respects.
8.2. The Client shall supply ProVision with full details of the nature of the engagement and the requirements of the Client. If ProVision does not receive such information it shall decide with absolute discretion on the type of Personnel to be supplied.
8.3. The Client shall not allow any Personnel to undertake any work other than that which is provided for in the Order.
8.4. Where the Client reasonably considers any Personnel supplied by ProVision to be unsatisfactory; and the Client notifies ProVision immediately in writing of the complaint, ProVision will endeavour to supply replacement Personnel for the Order for the Client at the earliest opportunity.
8.5. Any rebate on the fees charged by ProVision is entirely at its discretion but can only be considered if the requirements of clause 8.4 are fulfilled.
8.6. Where an Order specifies that the Client is required to supply Equipment and where the Client fails to supply such Equipment, or supplies such Equipment late, or supplies incorrect Equipment to ProVision, then the Client will remain liable for the total agreed fee, notwithstanding that the Order may not be capable of fulfilment by ProVision, or is delayed, or materially affected as a result and the Client or ProVision is required to supply or make available Equipment for the purposes of the Order.
8.7. If ProVision’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Provision shall: (a) not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay; (b) be entitled to payment of its charges despite any such prevention or delay; and (c) be entitled to recover any additional costs, charges or losses the Client sustains or incurs that arise directly or indirectly from such prevention or delay.
9. Payment
9.1. The Client shall make payments to ProVision in accordance with the Billing Schedule. Standard billing schedule terms are 75% deposit payment before commencement of work and 25% balance payment within 30 days of completion of the Event.
9.2. ProVision shall invoice the Client in accordance with the Billing Schedule and the Client shall pay ProVision’s fees within 30 days of the date of invoice.
9.3. Where ProVision has not received payment within 30 days of the date of the invoice then ProVision shall be entitled, without liability to ProVision, to withhold the supply of all Services and/or Personnel until such payment is received.
9.4. Overdue invoices are subject to a late payment charge. Once the invoice is 15 days overdue, the fee of 2.5% of the total costs will be added for every additional overdue week, until the invoice is paid in full.
9.5. All fees quoted to the Client shall be exclusive of VAT which ProVision shall add to its invoices at 20% rate if inside the UK.
9.6. All sums payable to ProVision under this Agreement shall become due immediately on its termination, despite any other provision. This clause 9 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
9.7. If any payment due from the Client pursuant to this agreement is subject to tax (whether by way of direct assessment or withholding at its source), ProVision shall be entitled to receive from the Client such amounts as shall ensure that the net receipt, after tax, to ProVision in respect of the payment is the same as it would have been were the payment not subject to tax.
10. Liability
10.1. Whilst ProVision endeavours to supply Services and/ or Personnel to fulfil the requirements of the Client, ProVision’s liability for:
10.1.1. Any breach of warranty this Agreement ;
10.1.2. Any breach of this Agreement;
10.1.3. Any claim that the Work infringes third party intellectual property rights (to include patents, copyright, designs or trademarks);
10.1.4. Any failure of the Personnel supplied to meet the requirements of the Client for all of any of the purposes for which they are required by the Client;
10.1.5. Any act or omission of the Personnel supplied whether wilful, negligent, dishonest, reckless or otherwise; any loss, injury, damage, expense; delay incurred or suffered by the Personnel supplied;
shall be limited to the total price of the Order stated in the Order or Billing Schedule as applicable to which these Terms and Conditions refer, provided that nothing in this clause 10 shall be construed as purporting to exclude or restrict any liability of ProVision to the Client for personal injury or death resulting from negligence (as defined by the Unfair Contract Terms Act 1977) or any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by ProVision nor any statutory liability or any exclusion or limitation which is prohibited by law.
10.2 Under no circumstances shall ProVision be responsible for any loss of profits, loss of business or for any indirect or consequential loss arising as a result of any breach by it of this Agreement.
10.3. Under no circumstances shall ProVision be responsible for any loss or damages, loss of profits, loss of business or for any indirect or consequential loss arising as a result of ProVision being unable to provide the Client with Personnel or Equipment due to any travel or other restrictions imposed in connection with or as a direct or indirect consequence of the Coronavirus (COVID-19).
11. Responsibility for Personnel
11.1. Unless otherwise agreed by ProVision, in relation to the Order the Client is responsible for providing all necessary supervision of Personnel and for directing and controlling them during the course of any engagement.
11.2. The Client accepts that it is responsible for all acts, errors or omissions of its own employees at an Event whether negligent or not in all respects and the Client will indemnify defend and hold ProVision harmless for and against any loss, damage or expense suffered by ProVision and arising out of such matters.
12. Safety of Personnel and Other Requirements
12.1. Unless otherwise agreed by ProVision, in relation to the Order, the Client is responsible for the safety of the Personnel throughout the performance of an Order and will ensure that all local laws, statutes, bylaws, European Directives and Regulations and other requirements applicable to the Personnel will be complied with in all respects.
13. Insurance
13.1. Unless otherwise agreed by ProVision, Clients shall ensure that they have adequate insurance to cover the obligations referred to in clauses 10, 11 and 12.
14. Cancellation or Postponement
14.1. Where the Client cancels an Order, ProVision shall be entitled to charge:
14.1.1. If an Event is cancelled 30 days or more prior to the first day of build for the Event, the Client shall be liable to pay 75% of ProVision’s quoted charges plus any third party charges incurred (whether paid or not by ProVision).
14.1.2. If an Event is cancelled in the period less than 30 days prior to the first day of build for the Event, the Client shall be liable to pay 100% of ProVision’s quoted charges plus any third party charges incurred (whether or not paid by ProVision).
14.2. Where the Client postpones an Order, ProVision shall be entitled to charge:
14.2.1 If an Event is postponed 30 days or more prior to the first day of build for the Event, all quoted charges of ProVision incurred to the date of postponement on a time incurred basis plus VAT plus any third party charges incurred (whether or not paid by Provision).
14.2.2. If an Event is postponed in the period less than 30 days prior to the first day of build for the Event, the Client shall be liable to pay at least 75% of ProVision’s quoted charges plus any third party charges incurred (whether paid or not by ProVision)
15. Variation of Order or Change Control
15.1. In the event that the Client directs ProVision to vary the Order or the quantity or description of the Services and/or Personnel to be supplied, ProVision shall promptly inform the Client in writing of the revised fees and disbursements and impact on time for delivery and the Client shall have 2 working days to accept or reject such revised fee. If the Client does not confirm within such period that the revised fee is not acceptable, the revised fees shall be deemed accepted and effective.
16. Nature of Performance
16.1. In the event of Personnel being required to carry out duties or Services other than those specified at the time of the booking, or the events or promotions in the Order being performed at a different time or take longer than anticipated, an additional fee may be incurred. Personnel photographed for promotional reasons during, or in performance of an Order will incur photo-call rates over and above the initial agreed rate provided.
17. Permission for Access
17.1. Where performance of the Order requires the obtaining of a licence, right or other permission for access or any other purpose from the local council or any other person then:
17.1.1. It shall be the responsibility of the Client to obtain such permission, etc; and
17.1.2. If such permission, etc. is not obtained then the Client shall remain liable for the total agreed fee set out in the Order.
18. Assignment and Subcontracting
18.1. ProVision may subcontract all or any part of the Order, but shall remain liable for the acts and defaults of its sub-contractors except as set out in clauses 11 and 12.
18.2. The Client may not assign its rights and obligations under this Agreement without the prior written consent of ProVision.
19. Termination
19.1. ProVision may terminate this Agreement forthwith by notice in writing to the Client if the Client:
19.1.1. Is in material breach of this Agreement and not capable or remedy, or in the case of a breach capable of remedy, fails to remedy such breach within 7 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or
19.1.2. Passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
19.1.3. Becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
19.1.4. Has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
19.1.5. Has a petition filed for its winding-up;
19.1.6. Has suspended, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
19.1.7. Ceases, or threatens to cease, to carry on business; or
19.1.8. Loses any licence that is required for an Event;
19.1.9. Has any event occur, or proceedings taken, in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 19.1.1. to clause 19.1.8 (inclusive) above.
19.2. The Client shall on termination immediately account to ProVision for all fees and payments due to ProVision under this Agreement. The parties’ rights, duties and responsibilities shall continue in full force during the agreed period of notice whether or not there is a period of notice.
20. Survival of Obligations on Termination
Clauses 3, 4, 5, 9, 10, 13, 14, 16 and 20 shall survive termination of this Agreement.
21. Waiver
21.1. No whole or partial waiver of any breach of this Agreement shall be held to be a waiver of any other or subsequent breach. The whole or partial failure of ProVision to enforce at any time the provisions of this Agreement shall in no way be construed to be a waiver of such provisions nor in any way affect the validity of this Agreement or any part of it or the right of either party to enforce subsequently each and every provision.
22. Force Majeure
22.1. If due to war, strikes, industrial action short of a strike, import or export embargo, lockouts, accidents, fire, blockade, import or export embargo, flood, natural catastrophes, pandemics, stay-at-home orders, acts of terrorism or other obstacles over which either party has any reasonable control, whether foreseeable or non-foreseeable, the party in default fails to perform any of its obligations under this Agreement, save for any obligations by the Client to pay for cancellation or postponement pursuant to clause 14, the party in default shall not be held responsible for any loss or damage which may be incurred as a result of such failure. Should the event of Force Majeure continue for longer than one month, the party adversely affected shall have the option of terminating this Agreement immediately without further liability, save for any obligations by the Client to pay for cancellation or postponement pursuant to clause 14, other than such liabilities as have already accrued when the Agreement ends.
23. Severance
23.1. If any part of this Agreement is found by a court of competent jurisdiction, or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Agreement, the parties shall promptly commence good faith negotiations to remedy such invalidity.
24. Entire Agreement
24.1. This Agreement and the documents referred to herein is the complete and exclusive statement of the agreement between the parties relating to the subject matter of this Agreement which supersedes all previous communications, agreements and other arrangements, written or oral. It is expressly agreed that no variation of this Agreement shall be effective, unless in writing and signed by both parties.
25. Notices
25.1. Any notice, invoice or other communication, which either party is required by this Agreement to serve on the other party shall be sufficiently served if sent to the other party at its specified address on the Order (or such other address as is notified to the other party in writing), as follows: by hand; by registered, or first-class post, or recorded delivery; confirmed by registered or first-class post or recorded delivery or by email transmission provided receipt is acknowledged. Notices sent by registered post or recorded delivery shall be deemed to being served 2 working days following the day of posting. Notices sent by email transmission shall be deemed to being served on the day of transmission if transmitted and acknowledged before 4.00pm on a working day, but otherwise on the next following working day. In all other cases, notices are deemed to being served on the day when they are actually received.
27. Miscellaneous
27.1. The Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
27.2. This Agreement shall be construed in accordance with, and governed by, the law of England and Wales and both parties hereby irrevocably agree that the Courts of England and Wales shall have exclusive jurisdiction to resolve any controversy, or claim of whatever nature arising out of, or relating to this Agreement, or any alleged breach of it.
This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit or be enforceable by anyone else.
Name: Job Title:
Signed: Dated:
On behalf of Client
Name: Job Title:
Signed: Dated:
On behalf of ProVision Events Limited.