DEREKR TERMS OF SERVICE
Country Version: United Kingdom
What’s covered in these terms
I know it’s tempting to ignore these Terms of Service, but it’s important to establish what you can expect from me when using my services, and what I expect from you.
DerekR supplies services, specifically designed to assist clients in creating online content, producing videos, creating visuals, remastering videos for broadcast, publishing their videos to video-on-demand services, easing their video production process and enhancing the quality of their online content.
DerekR is willing to provide the Services (as defined below) and the Customer is willing to appoint DerekR to provide the Services in accordance with the provisions in this agreement.
The Customer’s attention is drawn in particular to the provisions in clause 11.
1.1 Definitions ~ In these Conditions, the following definitions apply:
- Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business
- Commencement Date: the date on which the Service is commenced as set out in Schedule 1
- Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 14.2
- Contract: the contract between DerekR and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
- Delivery Date: the delivery date for the Service or phase of a Service as set out in Schedule 2 if applicable.
- Fee: The amounts set out in Schedule 2 as may be varied from time to time.
- Force Majeure Event: has the meaning given in clause 13.
- Party and Parties: DerekR and the Customer, and “Party” shall mean either one of them.
- Schedules: The Schedules attached to this Agreement and as varied or added to from time to time by written agreement.
- Service or Services: The service or services set out in Schedule 2 which the Customer has agreed to receive from DerekR.
1.2 Creative Services ~ In these Conditions, the following rules apply:
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a party includes its personal representatives, successors or permitted assigns.
- A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- A reference to writing or written includes faxes and emails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of DerekR which is not set out in the Contract.
2.3 This Agreement shall continue from the date of its signing until terminated by either party under the provisions of clause 14 or until completion of the project specified in Schedule 2.
3.1 DerekR will provide the Services as set out in Schedule 2.
3.2 DerekR will provide the Services from the Commencement Date.
3.3 DerekR reserves the right to amend the Services if required by any applicable statutory or regulatory requirements.
4. PROVISION OF SERVICES
4.1 Where applicable DerekR shall use its best endeavours to provide the Services within the time limits set out in Schedule 2. If it is unable to do so for any reason it will notify the Customer as soon as practically possible and inform the Customer of:
- the reason for its being unable to provide the Service
- when the Service will be resumed.
4.2 Failure to provide a Service will not arise if the reason for the failure is a breach of this Agreement by the Customer or a Force Majeure Event.
SERVICES TO BE PROVIDED
5.1 The Services which DerekR will provide are set out in Schedule 2. The Customer and DerekR shall agree the provision of an individual Service including service levels, specification, Delivery Date (if applicable), details of delivery, the period of provision (if applicable) and the Fee payable and their agreement shall be signified by the signing of a copy of this Agreement as varied from time to time.
5.2 Schedule 2 may be varied or added to as agreed by the Parties from time to time, in writing. Any variation or addition to Schedule 2 shall be clearly indicated (including the additional or different Fee to be paid by the Customer) and alike procedure followed to that set out in subparagraph 5.1.
OBLIGATIONS OF THE CUSTOMER
6.1 During the currency of this Agreement the Customer will ensure that the Customer’s staff and agents cooperate and assist DerekR.
6.2 Where required the Customer shall provide, where applicable:
- Provide the Supplier with secure temporary [up to twelve (12) consecutive hours] storage for digital equipment.
6.3 In the event that the Customer receives any notice, decision, notification or is the object of any enforcement action by a governmental or regulatory agency or body which is likely to affect the delivery of the Services by DerekR, it will immediately inform DerekR in writing indicating what action it is proposing to take in respect thereof.
7. PRICE AND PAYMENT
7.1 The price of the Services shall be the price set out in Schedule 2.
7.2 DerekR may, by giving notice to the Customer at any time up to three (3) Business Days before delivery, increase the price of any Service to reflect any increase in the cost of the Services that is due to:
- any factor beyond DerekR’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); or
- any request by the Customer to change the Services; or
- any delay caused by any instructions of the Customer or failure of the Customer to give DerekR adequate or accurate information or instructions.
7.3 A Fee shall be paid upon invoicing by DerekR for each Service.
7.4 The price of the Services is exclusive of amounts in respect of value-added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 The Customer shall pay the invoice in full and in cleared funds within seven (7) Business Days from the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.6 If the Customer fails to make any payment due to DerekR under the Contract by the due date for payment, then DerekR shall be entitled to:
- require the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclay’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
- require the Customer to pay, in advance, for any Service (both including and in addition to the Service in respect of which it is in default) which has not yet been performed; and
- not perform any further Service.
7.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). DerekR may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by DerekR to the Customer.
8.1 Each Party agrees not to disclose any confidential information provided by the other Party during the currency of this Agreement or at any time thereafter to any third party save where the law requires. Each Party also agrees not to use any such confidential information for any other purpose other than in connection with the provision of the Service and will not use the information for any business or other purpose of its own.
8.2 Each Party undertakes to procure that its employees, directors, agents and advisers and any other persons to whom it makes available confidential information shall also keep confidential the information the subject of this clause 8.
8.3 The obligations in this clause 8 shall continue after the termination of this Agreement.
9. USE OF SUB-CONTRACTORS
9.1 DerekR may employ the services of a sub-contractor in order to deliver Services to the Customer. DerekR shall in such case be responsible for ensuring that the Service provided by the sub-contractor is to the same or a comparable standard to that delivered or intended to be delivered by DerekR.
TERMINATION AND SUSPENSION
10.1 If the Customer becomes subject to any of the events listed in clause 10.2, DerekR may terminate the Contract with immediate effect by giving written notice to the Customer.
10.2 For the purposes of clause 10.1, the relevant events are:
- the Customer suspends, 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
- the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
- (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
- (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
- (being a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
- (being an individual) the Customer is the subject of a bankruptcy petition or order;
- a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2(a) to clause 10.2(f) (inclusive);
- the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
- the Customer’s financial position deteriorates to such an extent that in the DerekR’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
- (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
10.3 Without limiting its other rights or remedies, DerekR may suspend the provision of the Goods under the Contract or any other contract between the Customer and DerekR if the Customer becomes subject to any of the events listed in clause 10.2, or DerekR reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10.4 On termination of the Contract for any reason the Customer shall immediately pay to DerekR all of the Supplier’s outstanding unpaid invoices and interest.
10.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
10.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
11. LIMITATION OF LIABILITY
WARNING: you are strongly advised to read the drafting note commentary on this clause.
11.1 DerekR shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
11.2 DerekR’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed fifty-nine pounds (£59 GBP).
12.1 The Customer will indemnify DerekR in respect of any losses, damage or liability DerekR may incur as a result of the Customer’s acts or omissions, whether deliberate, accidental, negligent or reckless, in the course of the provision by DerekR of the Service to the Customer under this Agreement whether such acts or omissions amount to a breach of an express or implied obligation under this Agreement or a breach of any other legal requirement or obligation, code of practice, licence, consent, forbearance, approval, permission or rule.
12.2 For the avoidance of doubt losses, damage and liability shall include but not be limited to economic and commercial loss, loss of goodwill, legal and other costs associated with legal proceedings of any kind which DerekR has to bring or to which it has to respond, fines, penalties, damages and any financial consequence whatever flowing directly or indirectly from the matters set out in this clause 12.
13. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, the collapse of building structures, fires, floods,
8 storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or sub-contractors.
14.1 Assignment and other dealings.
- DerekR may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.
- The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of DerekR.
14.2 Variation ~ Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by DerekR.
14.3 Waiver ~ A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other9 case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first-class post or other next working day delivery service, commercial courier, fax or email.
- A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.5; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
- The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14.6 Third parties ~ A person who is not a party to the Contract shall not have any rights to enforce its terms.
14.7 Governing law ~ 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 the law of England and Wales.
14.8 Jurisdiction ~ Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
14.9 No Employment or Partnership ~ The Parties agree that no relationship of employment or partnership is created by this Agreement.