1. TERMS AND CONDITIONS
The attached letter (“Letter”) and these terms and conditions create a binding contract between the client named (“Client”) and Quite Brilliant (“QB”). These terms will apply to any trading arrangement between Client and QB and shall not be varied unless agreed in writing and signed by QB and Client. Capitalised terms have the meaning given to them in the Letter unless stated otherwise.
QB will provide Client with the Works described in the Proposal and provide goods and services in relation thereto with reasonable skill and care. Client will co-operate with QB, including by providing all artworks, information, articles, photographs, instructions, approvals, demos, samples and other materials which QB require for the Works (“Materials”).
3.1 Client shall pay QB the Fees without deduction or set-off (plus VAT) within 30 days of receipt of its invoice.
3.2 QB may charge interest on any overdue payment at a rate of 8% over The Bank of England base rate in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, as amended and supplemented by the late Payment of Commercial Debts Regulations 2002.
3.3 QB may charge additional Fees in accordance with its then prevailing rates in the event of:
3.3.1 delays or additional Works caused by Client, including its failure to supply Materials which Client had committed in writing to supplying;
3.3.2 changes to the cost of labour, materials, services and other circumstances outside of its reasonable control, provided that such changes are communicated in writing to Client prior to incurring such costs.
3.3.3 Client requiring additional Works or any changes to the Works in which case QB and Client shall discuss all aspects of such change (including additional Fees and changes to the Proposal) and QB shall, until such change is agreed, perform and be paid for the Works as if the Change had not been proposed, unless otherwise requested by Client.
3.4 Changes to the Works shall be reflected and accompanied by appropriate amendments to the Proposal and Fees.
3.5 All material, copyright, trademarks, rights to ideas, know how, confidential information and other intellectual property rights in the Works supplied to the Client with the sole exception of any third party copyright incorporated into the Works being reserved by such third party shall remain exclusively the property of QB until the payment of all fees in full, and shall be the sole property of the Client as soon as payment in full is made, without the need of any additional documentation.
4. INTELLECTUAL PROPERTY RIGHTS / CONFIDENTIALITY
4.1 Subject to clause 3.5, all copyright, trademarks, rights to ideas, know how, confidential information and other intellectual property rights in the Works and related material devised or created by QB with the sole exception of any third party copyright incorporated into the Works being reserved by such third party, will belong to and vest in Client.
4.2 Subject to clause 4.1, Client shall have the Usage rights set out in the Letter. These rights take effect and are conditional upon payment of the Fees and are limited to and apply only to those ideas, concepts and parts of the Works which QB is specifically contracted to proceed with and not to the rights to the application of those original ideas, concepts and parts of the Works to any sequel or similar work or any other original ideas, concepts or proposals pitched or suggested to Client, which shall be retained by QB.
4.3 If the Client requires Usage rights over and above those set out in the Letter, then these further uses shall be subject to additional Fees to be agreed in writing and paid to QB prior to such usage.
4.4 Until Client pays the Fees in full, Client shall not modify or adapt the Works without the prior written consent of QB or as otherwise permitted by law.
4.5 QB shall be entitled to use the Materials for all purposes relating to this Agreement and in the event that its services include making available, distributing or disseminating any Works (containing Materials) to any third parties, it shall be entitled to do so in such manner and on such terms as it shall reasonably determine.
4.6 Both parties agree to keep secret and confidential all information supplied by the other that is expressed to be confidential or should reasonably be considered to be confidential (including without limitation any pitch, strategy, ideas or concepts) and only to use or disclose such information with the other party’s prior written consent. On completion of the Works both parties shall return to the other all confidential information belonging to the other party or, upon written instruction from the other party, dispose of them.
5. LIABILITY AND WARRANTY
5.1 QB shall not be liable to Client for any consequential loss or damage and its liability for direct loss or damage (except for death or personal injury caused by its negligence and any direct loss relating to Client’s intellectual property) shall not exceed the amount invoiced by QB to Client hereunder.
5.2 The Client is responsible for making its own evaluation of the Works and material provided by QB who makes no warranty as to its legality, completeness or utility except that QB has used reasonable skill and care in its preparation.
5.3 All instructions or advice given or received orally by QB shall be followed up by a written confirmation (by e-mail or letter) from the party giving such instruction. .
5.4 QB gives no warranty in relation to any third-party material.
5.5 Client warrants that the Materials do not infringe any third-party rights and are free of racist, defamatory, obscene and other legally restricted material and shall not cause any legal liability to QB through their inclusion in the Works;
5.6 QB warrants that it will use reasonable efforts to ensure that the Works do not infringe the copyright of any third party.
5.7 Each party undertake to indemnify and hold harmless the other party in full and defend at its own expense the other party against all costs, damages and losses actually incurred by it arising out of the use by the indemnifying party of the Materials or any other breach of this Agreement by the indemnifying party.
6.1 QB may immediately terminate this Agreement and (subject to clause 3.5) Client’s use of any Works upon its material breach of this Agreement (including without limitation the non-payment of any sum) unless such breach is remedied, where remediable, within 14 days of receipt of a written notice of such breach to Client. Client may not otherwise cancel the Works or otherwise terminate this Agreement without full payment of the Fees.
6.2 Client ay immediately terminate this Agreement in the event of a material breach by QB of any term of this Agreement, in the event that such breach is not remedied, where remediable, by QB within 14 days of receipt of a written notice to QB by Client of such breach.
6.3 QB will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of QB including without limitation Internet outages, communications outages, fire, flood, war, acts of terrorism or acts of God.
7.1 These terms shall not be deemed to create a partnership or agency relationship between the Parties.
7.2 If any part of this Agreement is or becomes unenforceable, such part will be construed as far as possible to reflect the parties’ intentions and the remainder of the provisions will remain in full force and effect.
7.3 No waiver, failure or delay by either party to enforce its rights shall prejudice or restrict its rights in future.
8.1 These terms are made and shall be construed in accordance with the laws of England and the parties submit to the non-exclusive jurisdiction of the English courts.