TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES IN THE USA
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 and provided by the Client;
“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, affiliates and related parties;
“Intellectual Property Rights” means patents, inventions, trademarks, service marks, trade names, logos, domain names, business names, rights in designs (including registered designs and design rights), copyright (including rights in computer software and moral rights), rights in know-how and all other intellectual property rights;
“ProVision” means ProVision Events Inc.;
“Order” means the order for Services and/or Personnel as more fully described and attached to these Terms;
“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 or modification to the Order or this Agreement shall be binding unless agreed in writing between the 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 (collectively, the “Work”), shall be the exclusive property of the Client upon full payment for the Order in accordance with the Billing Schedule. No vesting or transfer of any Intellectual Property Rights in and to the Client shall occur unless and until full payment for the Order has been received from the Client. Upon receipt of full payment ProVision hereby assigns the copyright in such Work to the Client.
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 Works as contemplated in the Order.
3.4. Upon an assignment of Intellectual Property Rights in the Work ProVision irrevocably and unconditionally waives 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 favor of the Client. ProVision shall keep all Work 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 Rights 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 Personnel, employee, contractor or agent of ProVision with whom it has had contact for the purposes of the Services within a period of 12 months following the date of completion of the Order.
4.2. Client shall not compete with Provision, directly or indirectly, or on behalf of any other person, firm, partnership, corporation or other entity, with respect to the sale or promotion of Services that are the same or similar to the Company's Services while any Order is in force and effect.
4.3. Clients will pay a sum to ProVision where Personnel supplied by ProVision terminate their contract with ProVision and enter into employment with the Client in violation of clause 4.1 (“Liquidated Damages”). The Liquidated Damages shall be 20% of the individual Personnel’s aggregate contractual remuneration for the first year of their employment with the Client. Client agrees that the Liquidated Damages is fair and reasonable to reimburse the ProVision for its losses, damages, costs, and not as a penalty, for a violation of clause 4.1.
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. On termination of this Agreement or at any time upon the request of Discloser in writing, Recipient shall return to Discloser all documents, including all copies thereof, and all other property relating to the business of Discloser, including without limitation, any confidential information, in its possession or control.
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
5.2.4 information 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 and permitted by law to allow for the seeking of a protective order.
6. Standard of Performance
6.1. ProVision warrants that it will carry out the Services with reasonable care and skill.
6.2. 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.
6.3. ProVision shall ensure that the Services will comply with all applicable laws, rules and regulations.
6.4. OTHER THAN EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, AND PROVISION SPECIFICALLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
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, 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 waste materials 1 day post 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. Supply of Personnel and Equipment
8.1. 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.
8.2. The Client shall not allow any Personnel to undertake any work other than that which is provided for in the Order.
8.3. Where the Client considers any Personnel supplied by ProVision to be reasonably unsatisfactory; and the Client notifies ProVision immediately in Writing of the complaint, ProVision will endeavor to supply replacement Personnel for the Client at the earliest opportunity.
8.4. Any rebate on the fees charged by ProVision is entirely at its discretion and is subject to the satisfaction of the requirements of clause 8.3.
8.5. Where an Order specifies that the Client is required to supply Equipment and where the Client fails to supply such Equipment, or supplies 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.
8.6 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 in accordance with the Billing Schedule despite any 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 payments for Services are exclusive of any taxes. Client agrees to pay any applicable value added, goods and services, sales, or like taxes that are owed with respect to Services performed under this Agreement.
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.
10. Liability
10.1. WITHOUT LIMITING THE FOREGOING, THE LIABILITY OF PROVISION TO CLIENT FOR ANY CLAIM WHATSOEVER RELATED TO THE SERVICES OR THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE TOTAL PRICE OF THE ORDER ACTUALLY MADE HEREUNDER AS OF THE DATE OF ACCRUAL OF SUCH CLAIM.
10.2 IN NO EVENT SHALL PROVISION BE LIABLE TO CLIENT FOR ANY LOSS OF PROFITS, SALES OR BUSINESS OPPORTUNITIES, OR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES UNDER THIS AGREEMENT, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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 result 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 supplied by Client (“Client Personnel”) and for directing and controlling them during the course of any engagement. By accepting Client Personnel the Client accepts that it is responsible for all acts, errors or omissions of Client Personnel whether negligence 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 the acts or omissions of Client Personnel.
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 comply with all applicable laws, rules and regulations applicable to the Personnel.
13. Insurance
13.1. Unless otherwise agreed by ProVision, Clients shall obtain and maintain insurance to cover the obligations referred to in clauses 10, 11 and 12 and in such amounts and against such risks as is customary for the industries in which the Client operates.
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 than 30 days 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 than 30 days 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 applicable sales and use taxes 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. All such additional fees are set forth in the Project Budget.
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 governmental authority 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 forth 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. Any assignment in violation of this Agreement shall be null and void.
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 any of the Terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 7 days of receipt of written notice describing the breach; or
19.1.2. makes a general assignment for the benefit of creditors; or
19.1.3. institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it, or seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization; or
19.1.4. is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; or
19.1.5. has a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee or assignee in bankruptcy or in insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs; or
19.1.6 ceases, or threatens to cease, to carry on business.
19.2. The Client shall on termination immediately account to ProVision for all fees and payments due to ProVision under the 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, 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, acts of terrorism, pandemics, stay-at-home orders or other events which is not within the party’s reasonable control, whether foreseeable or non-foreseeable (collectively, “event of Force Majeure”) the party in default fails to perform any of its obligations under this Agreement, except for any obligations by the Client to make all the payments required under 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 except for (i) any obligations by the Client to make all the payments required under clause 14 and (ii) other than such liabilities as have already accrued when the Agreement terminates.
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, modification or amendment 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 certified or first-class mail, or overnight delivery; or by email transmission provided receipt is acknowledged. Notices sent by certified mail shall be deemed to being served 2 working days following the day of mailing. Notices sent by email transmission shall be deemed to have been 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.
26. Dispute Resolution
26.1. In this clause “Mediation” shall mean non-binding mediation in accordance with the JAMS Streamlined Mediation Rules & Procedures (the “JAMS”) before a single mediator. Either party shall at its absolute discretion refer any difference which in any way relates to or arises out of this Agreement to Mediation under the auspices of JAMS as a condition precedent to exercise any right to litigation except that a party shall have the right to pursue in a court of competent jurisdiction the following : (i) seek and obtain injunctive relief for any reason (including but not limited to disclosure of confidential information) without necessity of an undertaking and/or (ii) to issue and pursue litigation for non-payment of an invoice. The mediator shall be agreed upon by the parties, but failing such agreement within 10 days of one party requesting the appointment of a mediator and providing details of their proposed mediator, JAMS shall select the mediator. Unless agreed otherwise the parties shall share equally the costs of the Mediation.
27. Governing Law; Jurisdiction; Attorney’s Fees
27.1. This Agreement shall be construed in accordance with, and governed by, the laws of the State of Florida, without regard to its conflict of law principles, and both parties hereby irrevocably agree that, subject to compliance with clause 26.1, the Courts of Florida] 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.
27.2 If any action or proceeding is brought by either party against the other pertaining to or arising out of, or regarding the interpretation of, this Agreement, the finally prevailing party shall be entitled to recover all costs and expenses, including reasonable attorneys’ fees, incurred on account of such action or proceeding from the other party.
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.
[COMPANY]
By:
Name: Job Title:
Dated:
ProVision Events Inc.
By:
Name: Job Title:
Dated: