Terms and Conditions of Business | Projects V.1
THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Conditions.
Booking Form, means the form to be prepared by Silverbox and completed and signed by the Client and, in the absence of such form, the specifications as shall be agreed between Silverbox and the Client in writing from time to time.
Business Day, means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges, means the charges payable by the Client for the supply of the Services in accordance with clause 5.
Client, means the person or firm who purchases Services from Silverbox.
Client Data, means data, in whatever form, owned, held and/or controlled by the Client which is made available to Silverbox or is otherwise created, collated or collected and/or accessed by Silverbox in connection with the Services;
Client Materials, means any materials provided by the Client to Silverbox.
Commencement Date, means the date set out in the Booking Form.
Conditions, means these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract, means the contract between Silverbox and the Client for the supply of Services in accordance with these Conditions and the Booking Form if and as may be signed by the Client from time to time and the signing of the Booking Form and/or the delivery of the Services by Silverbox to the Client shall be deemed to be unconditional acceptance by the Client of these Conditions and the Booking Form.
Control, has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures, means as defined in the Data Protection Legislation.
Client Default, has the meaning set out in clause 4.2.
Data Protection Legislation, means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended [and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications);
Deliverables, means all documents, products and materials developed by Silverbox or its agents, contractors and employees as part of or in relation to the Services.
Domestic Law, means the law of the United Kingdom or a part of the United Kingdom.
Intellectual Property Rights, means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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.
Services, means the services, including the Deliverables, provided by Silverbox to the Client as set out in the Booking Form.
Silverbox, means Silverbox Films Ltd registered in England and Wales with company number 07550012 whose registered office is 12 Park Lane, Tilehurst, Reading, Berkshire, England, RG31 5DL.
Silverbox Materials, has the meaning set out in clause 4.1.7.
UK GDPR, has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
1.2.1. A reference to legislation or a legislative provision:
(a) is a reference to it as amended, extended or re-enacted from time to time; and
(b) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.2.2. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3. A reference to writing or written includes fax and email.
- Basis of contract
2.1. The Booking Form constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2. The offer to purchase the Services from Silverbox shall be deemed to be accepted and the Contract shall come into existence on the Commencement Date as indicated in the Booking Form or, in the absence of a Booking Form, signed or otherwise, on the date in which Silverbox performed any act in the provision of any of the Services.
2.3. Any samples, drawings, descriptive matter or advertising issued by Silverbox, and any descriptions or illustrations contained in Silverbox's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5. Any quotation given by Silverbox shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
- Supply of Services
3.1. Silverbox shall supply the Services to the Client in accordance with the Booking Form in all material respects.
3.2. Silverbox shall use all reasonable endeavours to meet any performance dates specified in the Booking Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3. Silverbox reserves the right to make any changes to the Services which are necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Silverbox shall notify the Client in any such event.
3.4. Silverbox warrants to the Client that the Services will be provided using reasonable care and skill.
- Client's obligations
4.1. The Client shall:
4.1.1. ensure that the terms of the Booking Form and any information it provides are complete and accurate;
4.1.2. co-operate with Silverbox in all matters relating to the Services;
4.1.3. provide Silverbox, its employees, agents, consultants and subcontractors, as reasonably required by Silverbox with access to Client Data, Client Materials and the Client's premises, and other facilities and ensure that any access to the premises that may require permission from third party is obtained in advance;
4.1.4. provide Silverbox with such information and materials as Silverbox may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.5. prepare the Client's premises for the supply of the Services, including taking all reasonable steps to ensure COVID safety by following Government COVID-Secure Guidance and taking such steps to limit the risk of transmission, and comply with any other such applicable laws, including health and safety laws, that may be in place from time to time;
4.1.6. ensure they obtain and maintain all necessary licences, permissions and consents which may be required for the Services, including but not limited to consent from parents for Silverbox to take photographs and or videos containing their childrens identity, including visibility of their face or other identifying features before the date on which the Services are to start;
4.1.7. ensure they obtain and maintain parental consent for Silverbox to store and use photographs or videos of the children for the purpose of providing the Services and for use on Silverbox’s website and social media platforms including but not limited to Youtube, Facebook, Twitter and Instagram.
4.1.8. keep all Silverbox Materials, equipment, documents and other property of Silverbox at the Client's premises in safe custody at its own risk, maintain Silverbox Materials in good condition until returned to Silverbox, and not dispose of or use Silverbox Materials other than in accordance with Silverbox's written instructions or authorisation;
4.1.9. ensure that the Client or any third party that may be provided with any of the Silverbox Materials or Deliverables does not reproduce, modify, decompile, disassemble, decode or redesign any of the Silverbox Materials or Deliverables without Silverbox’s prior written consent; and
4.1.10. comply with any additional obligations as set out in the Booking Form.
4.2. If Silverbox's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
4.2.1. without limiting or affecting any other right or remedy available to it, Silverbox shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Silverbox's performance of any of its obligations;
4.2.2. Silverbox shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Silverbox's failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3. the Client shall reimburse Silverbox on written demand for any costs or losses sustained or incurred by Silverbox arising directly or indirectly from the Client Default.
- Charges and payment
5.1. The Charges for the Services shall be invoiced by Silverbox and paid by the Client, all as set out in the Booking Form, in full and in cleared funds to a bank account nominated in writing by Silverbox, and time for payment shall be of the essence of the Contract.
5.2. Silverbox shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom Silverbox engages in connection with the Services including, but not limited to, travelling expenses, subsistence, Materials, and any expenses as may be set out in the Booking Form and any associated expenses, and for the cost of services provided by third parties and required by Silverbox for the performance of the Services, and for the cost of any Materials.
5.3. Without limiting any other right or remedy of Silverbox, if the Client fails to make any payment due to Silverbox under the Contract by the due date for payment (Due Date), Silverbox shall have the right to charge interest on the overdue amount 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, from the Due Date until the date of actual payment of the overdue amount, whether before or after judgement, and compounding quarterly.
5.4. The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Silverbox in order to justify withholding payment of any such amount in whole or in part. Silverbox may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Silverbox to the Client.
- Intellectual property rights
6.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by Silverbox and no part shall be copied or reproduced without Silverbox’s prior written consent.
6.2 Silverbox grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Deliverables (excluding materials provided by the Client) for the purpose of receiving and using the Services and the Deliverables as set out in the Booking Form.
6.3. The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
6.4. The Client grants Silverbox a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to Silverbox for the term of the Contract for the purpose of providing the Services to the Client.
- Data protection
7.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
7.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and Silverbox is the Processor.
7.3. Without prejudice to the generality of 7.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Silverbox and/or lawful collection of the Personal Data by the Silverbox on behalf of the Client for the duration and purposes of this agreement.
7.4. Without prejudice to the generality of 7.1, Silverbox shall, in relation to any Personal Data processed in connection with the performance by Silverbox of its obligations under the Contract:
7.4.1. process that Personal Data only on the documented written instructions of the Client which are set out in Schedule 1 unless Silverbox is required by Domestic Law to otherwise process that Personal Data. Where Silverbox is relying on Domestic Law as the basis for processing Personal Data, Silverbox shall promptly notify the Client of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits Silverbox from so notifying the Client;
7.4.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
7.4.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
7.4.4. not transfer any Personal Data outside of the UK unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(a) the Client or Silverbox has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) Silverbox complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) Silverbox complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
7.4.5. assist the Client, at the Client's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.4.6. notify the Client without undue delay on becoming aware of a Personal Data Breach;
7.4.7. at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Domestic Law to store the Personal Data; and
7.4.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 7.
7.5. Where Silverbox intends to appoint a third party processor of Personal Data under the Contract, Silverbox will obtain prior written consent of the Client.
7.6. Either party may, at any time on not less than 30 (thirty) days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms adopted under the Data Protection Legislation or forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
- Limitation of liability: THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
8.1. Nothing in these Conditions shall limit or exclude Silverbox’s liability for:
8.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.1.2. fraud or fraudulent misrepresentation; or
8.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2. Subject to clause 8.1:
8.2.1. Silverbox shall under no circumstances whatever be liable to the Client, 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
8.2.2. Silverbox’s total liability to the Client 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 be limited to the value of the Charges paid under the Contract.
8.3. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4. This clause 8 shall survive termination of the Contract.
9.1. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.1.1. the other party commits a material breach of the Contract and if such a breach is remediable fails to remedy that breach within seven days of that party being notified in writing of the breach;
9.1.2. the other party 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 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;
9.1.3. the other party 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 a company for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.1.4. 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 that other party being a company other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.1.5. the other party being an individual is the subject of a bankruptcy petition or order;
9.1.6. a creditor or encumbrancer of the other party 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;
9.1.7. 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 other party being a company;
9.1.8. a floating charge holder over the assets of that other party being a company has become entitled to appoint or has appointed an administrative receiver;
9.1.9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
9.1.10. any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1.2 to clause 9.1.9 inclusive;
9.1.11. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
9.1.12. the other party being an individual dies or, by reason of illness or incapacity whether mental or physical, is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.2. Without limiting its other rights or remedies, Silverbox may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
9.3. Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party a written notice for the period set out in the Booking Form.
9.4. Without limiting its other rights or remedies, Silverbox shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and Silverbox if the Client becomes subject to any of the events listed in clause 9.1, or Silverbox reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
- Consequences of termination
10.1. On termination or expiry of the Contract:
10.1.1. the Client shall immediately pay to Silverbox all of Silverbox's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Silverbox shall submit an invoice, which shall be payable by the Client immediately on receipt;
10.1.2. the Client shall return all of Silverbox Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then Silverbox may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2. Assignment and other dealings.
11.2.1. Silverbox may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
11.2.2. The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Silverbox.
11.3.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by clause 11.3.2.
11.3.2. Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3.3. Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
11.4. Entire agreement.
11.4.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.4.2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
11.4.3. Nothing in this clause shall limit or exclude any liability for fraud.
11.5. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Contract deleted under this clause 11.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.8.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); sent by email to its main email address.
11.8.2. Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) 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; or
(c) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
11.8.3. This clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9. Third party rights.
11.9.1. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.9.2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.10. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.11. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.