1.618 DIGITAL Ltd
TERMS AND CONDITIONS OF BUSINESS
FOR CLIENTS (DIRECT SERVICES)
1.1 In these Conditions the following expressions shall have the following meanings:
“Charges” the charges charged by 1.618 Digital Ltd to the Client for the provision of Direct Services, as set out in the Estimate as amended from time to time by agreement between the parties, and/or as otherwise agreed between the parties;
“Client” the person named on the Estimate for whom 1.618 Digital Ltd has agreed to provide the Direct Services in accordance with these Conditions (including where requests are made through an intermediary acting on behalf of the Client);
“Client Input Assets” any Documents or other materials, and any data or other information provided by the Client relating to the Direct Services;
“Conditions” the standard terms and conditions for the supply of the Direct Services set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between 1.618 Digital Ltd and the Client as set out in the Contract;
“Contract” the contract for the provision of the Direct Services including the Estimate and these Conditions;
“Deliverables” any materials produced by 1.618 Digital for the Client as a result of the Direct Services, including any data or other information provided by 1.618 Digital but excluding any Working Assets or 1.618 Digital Input Assets.
“Digital Artist Introduction means the standard 1.618 Digital terms and conditions Conditions” governing the introduction of Digital Artists to a Client (not being Direct Services under these Conditions);
“Direct Services” the direct services to be provided by 1.618 Digital Ltd to the Client being:
(a) audio production and creative services;
“Estimate” 1.618 Digital Ltd’s estimate for the Direct Services;
“Force Majeure” any cause beyond 1.618 Digital’s reasonable control including, without limitation, any act of God, war, terrorism, civil disturbance, requisitioning, governmental or parliamentary restrictions, prohibitions or enactments of any kind, import or export regulations, strike lock-out or trade dispute (whether involving its own employees or those of any other person), difficulties in obtaining workmen or materials, breakdown of machinery, fire, accident, adverse weather or failure of couriers to deliver on time;
“1.618 Digital Ltd” 1.618 Digital Limited, company registration number 9850046, with its principal place of business at 1E Mentmore Terrace, London E8 3DQ;
“1.618 Digital Ltd Input Assets” any assets or other materials, and any data or other information provided by 1.618 Digital Ltd relating to the Direct Services but excluding any Working Assets or Client Input Material (and not included in the Deliverables);
“Working Assets” any master working materials provided and retained by 1.618 Digital Ltd including but not limited to audio, but excluding any Deliverables
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2 Basis of Contract
2.1 1.618 Digital Ltd shall provide the Direct Services and the Client shall purchase the Direct Services in accordance with any Estimate accepted by the Client verbally or in writing, subject always to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any Estimate is accepted or purported to be accepted or any order is made or purported to be made by the Client. For the avoidance of doubt, where the Client also enters into a Contract with 1.618 Digital Ltd for the provision of introduction services relating to the introduction of audio engineers, designers and artists, whether inclusive in the same Estimate or otherwise, the foregoing shall not preclude the application of the audio engineers, designers and artists Introduction Conditions to such introduction services.
2.2 These Conditions (together with the terms, if any, set out in the Estimate) and/or the Digital Artist Introduction Conditions, if applicable, constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except as agreed in writing between 1.618 Digital and the Client. Except as set out in clause 2.1 above, all other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
2.3 1.618 Digital’s employees, agents and contractors are not authorised to make any representations concerning the Direct Services unless confirmed in writing by 1.618 Digital Ltd. In entering into the Contract, the Client acknowledges that it does not rely on and waives any claims for breach of any representations which are not so confirmed.
2.4 Acceptance of these Conditions shall (without limitation) be deemed upon the earlier of:
2.4.1 Acceptance of any Estimate by or on behalf of the Client (whether verbally or in writing); and
2.4.2 Provision of a purchase order to 1.618 Digital Ltd by or on behalf of the Client (whether verbally or in writing).
3 Supply of the Direct Services
3.1 1.618 Digital Ltd shall provide the Direct Services to the Client subject to these Conditions. Any changes or additions to the Direct Services or these Conditions must be agreed in writing by 1.618 Digital Ltd and the Client.
3.2 The Client shall, at its own expense, supply 1.618 Digital Ltd with all necessary Documents or other materials, and all necessary data or other information relating to the Direct Services, within sufficient time to enable 1.618 Digital Ltd to provide the Direct Services in accordance with the Contract. The Client shall ensure (and warrants and represents) the accuracy of all such Input Material.
3.3 The Client shall be granted a non-exclusive licence to use software used by 1.618 Digital Ltd for the purposes of providing the Direct Services, as may be necessary for (and solely for the purposes of) enjoying the benefit of the Output Material and subject to such terms regarding territory, term, scope or other limitations as may be included in the Estimate or otherwise specified by 1.618 Digital Ltd in writing from time to time.
3.4 For avoidance of doubt, all intellectual property rights (and other rights) in such software (including in any related source or object codes) shall be retained by 1.618 Digital Ltd in accordance with clause 5.1.2 below and the Client shall have no rights in that regard. 1.618 Digital may vary, amend or terminate the terms of the licence granted pursuant to clause 3.3 above immediately at any time upon notice in writing to the Client.
3.5 The Client shall have no right to modify, adapt, develop, reverse engineer or otherwise alter any aspect of the Deliverables (including any Working Assets or any software or related object and source codes), unless consent is given in writing in the Estimate or otherwise agreed in writing by 1.618 Digital Ltd from time to time.
3.6 The Client shall notify 1.618 Digital Ltd immediately if it becomes aware of any actual, threatened or suspected infringement, or unauthorised use, of 1.618 Digital Ltd’s rights in the Deliverables Material and/or Working Assets and shall provide such assistance to 1.618 Digital Ltd as it may require to defend its rights and/or take action against such actual, threatened or suspected infringements.
3.7 1.618 Digital shall use all reasonable endeavours to provide the Direct Services in accordance with the Estimate and as otherwise agreed between 1.618 Digital and the Client in writing from time to time, subject to these Conditions, but the Client acknowledges and agrees that time of performance of the Direct Services is not of the essence of the Contract.
3.8 1.618 Digital may correct any typographical or other errors or omissions in any brochure, promotional literature, estimate or other document relating to the provision of the Direct Services without any liability to the Client.
3.9 1.618 Digital may at any time, without notifying the Client, make any changes to the Direct Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Direct Services.
4.1 Subject to any special terms agreed in the Estimate, the Client shall pay the Charges and any additional sums which are agreed between 1.618 Digital Ltd and the Client for the provision of the Direct Services or which, in 1.618 Digital Ltd’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Client Input Material or any other cause attributable to the Client.
4.2 1.618 Digital Ltd reserves the right to charge a cancellation fee of twenty-five percent (25%) of the Estimate if the Client cancels the Contract after acceptance (as referred in Condition 2.4). Cancellation after commencement of any of the Direct Services may incur the cancellation fee and/or 1.618 Digital Ltd’s standard charges for the Direct Services carried out, whichever is greater.
4.3 The Client shall reimburse 1.618 Digital Ltd for all reasonable expenses incurred by 1.618 Digital Ltd in the course of performing the Direct Services for the Client including all reasonable travelling, subsistence and other non-incidental expenses including, without limitation, all delivery expenses, couriers and delivery media costs. This applies to both fixed price and non-fixed price Estimates.
4.4 1.618 Digital Ltd shall be entitled to vary the Charges from time to time upon notice to the Client.
4.5 All Charges estimated to the Client for the provision of the Direct Services are exclusive of any applicable Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
4.6 1.618 Digital Ltd will invoice the Client on a regular basis. The Charges and any additional sums payable should be paid by the Client (together with any applicable Value Added Tax, and without set off or other deduction) in pounds sterling within thirty (30) days of the date of 1.618 Digital Ltd’s invoice.
4.7 The provision of final Deliverables to the Client will be deemed acceptance of satisfactory completion of the Direct Services (whether or not formal acceptance is given by the Client). Where delivery of the Deliverables or progression of the job is delayed by the Client without reasonable cause connected with the Direct Services, 1.618 Digital Ltd reserves the right to invoice the Client on a pro-rata basis for the proportion of the Direct Services completed at the point of delay.
4.8 All export, import, VAT, sales, use or other taxes, levies, duties, fees, governmental charges, exchange rate losses, bank charges and transfer fees shall be the sole responsibility of the Client, and all payments to 1.618 Digital Ltd shall be exclusive of such charges and losses. If the Client is required to withhold any tax or governmental charge on such payments or pay any additional fees or expenses or exchange any foreign currency into pounds sterling, then the amount of any such payment shall be automatically increased to offset such charges and losses, so that the net amount paid to and received by 1.618 Digital Ltd always equals the amount invoiced or otherwise due.
4.9 If full payment is not made by the due date, 1.618 Digital Ltd shall be entitled, without limiting any other right it may have, to:
4.10. Charge interest on the outstanding amount (both before and after any judgement) at the rate of one percent (1%) per calendar month (compound interest) from the due date until the outstanding amount is paid in full;
4.10.1 Suspend provision of any of the Direct Services without liability to the Client until the outstanding amount is paid in full and any times agreed for the provision of the Direct Services shall be amended accordingly; and/or
4.10.2 Terminate the Contract in accordance with Condition 7.2.1 below.
4.11 1.618 Digital Ltd’s regular office hours are 9am to 6pm Monday to Friday excluding bank holidays. Unless there is a prior agreement between 1.618 Digital Ltd and the Client staff members of 1.618 Digital Ltd are not obliged to engage with work or clients beyond these hours. Unless there is a prior agreement between 1.618 Digital Ltd and the Client, if work for the Client must be completed outside of these hours as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Client Input Material or any other cause attributable to the Client, the Client will be liable to pay overtime rates.
5 Rights in Input Material and Output Material
5.1 Subject to clauses 5.2 and 5.3 below, the property rights and any copyright and all other intellectual property rights in:
5.1.1 Any Client Input Assets shall belong to the Client; and
5.1.2 any 1.618 Digital Input Assets and Working Assets and Deliverables shall belong to 1.618 Digital Ltd unless agreed differently.
5.2 1.618 Digital Ltd shall have the right to use the Deliverables (and any Client Input Assets if applicable on licence from the Client) for its own portfolio, public relations and marketing purposes, unless the Client specifically requests otherwise either prior to the Estimate being accepted by it, or while the Services are being provided (provided in the latter case that this is accepted by 1.618 Digital Ltd).
5.3 For the avoidance of doubt, the Client shall not be granted a licence to use, modify or adapt the Working Assets, without the prior written consent of 1.618 Digital Ltd.
5.4 Provided that the following shall not apply to any Documents or other materials, data or other information which are required by law to be disclosed or are public knowledge at the time when they are provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party:
5.4.1 any Client Input Assets and Deliverables, or other information provided by the Client, which is so designated by the Client shall be kept confidential by 1.618 Digital Ltd; and
5.4.2 all Working Assets and 1.618 Digital Input Assets, or other information provided by 1.618 Digital Ltd, which is so designated by 1.618 Digital shall be kept confidential by the Client.
5.5 The Client shall be solely responsible for obtaining any clearances, permissions or otherwise in respect of third party copyright works, trade marks, designs or other intellectual property used in association with the Deliverables. 1.618 Digital accepts no liability for failure on the part of the Client to do this.
5.6 The Client warrants that any Client Input Material, and its use by 1.618 Digital for the purpose of providing the Direct Services, will not infringe the copyright or any other rights of any third party, and the Client shall indemnify 1.618 Digital Ltd from and against all and any claims, proceedings, penalties, losses, damages, costs and expenses (including legal expenses) suffered or incurred by 1.618 Digital Ltd arising from any such infringement or alleged infringement.
6 Warranties and Liability
6.1 1.618 Digital Ltd warrants to the Client that the Direct Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with, and within the times referred to in, the Estimate.
6.2 1.618 Digital Ltd shall have no liability to the Client for any loss, damage, costs, expenses or any other claims for compensation, arising from any Client Input Material or instruction supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival on non-arrival, or any other fault of the Client.
6.3 The Client shall, at its own expense, retain duplicate copies of all Client Input Material and insure against its accidental loss or damage by the Client, 1.618 Digital Ltd or otherwise. 1.618 Digital Ltd shall have no liability for any such loss or damage, however caused, or for any loss, damage, theft or destruction of Client Input Material. All Deliverables shall be at the sole risk of the Client from the time of delivery to, or to the order of, the Client and, whilst archiving of finished jobs does routinely take place at 1.618 Digital Ltd, 1.618 Digital Ltd accepts no responsibility for Deliverables, including Working Assets, once delivery has taken place. It is the Client’s sole responsibility to ensure that adequate care, provision and insurance of backups of Client Input Materials and Deliverables are maintained.
6.4 Except in respect of death or personal injury caused by the negligence of 1.618 Digital Ltd or its employees or agents, or as expressly provided in these Conditions:
6.4.1 1.618 Digital Ltd shall not be liable to the Client by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or indirect, special or consequential loss, damage, costs, expenses (whether caused by the negligence of 1.618 Digital Ltd, or its employees or agents or otherwise) which arise out of or in connection with the provision of the Direct Services or their use by the Client; and
6.4.2 the entire liability of 1.618 Digital Ltd to the Client and/or any other third party under or in connection with any Contract shall not exceed fifty thousand pounds sterling (£5,000) in aggregate.
6.5 1.618 Digital Ltd shall not be liable to the Client, or be deemed to be in breach of the Contract, by reason of any delay in performing, or any failure to perform, any of the Direct Services, if the delay or failure was due to any event of Force Majeure. Should any such event of Force Majeure occur for longer than six (6) weeks 1.618 Digital Ltd may cancel or suspend the Contract without incurring any liability for any loss or damage thereby occasioned.
6.6 If the Client does not consider that 1.618 Digital Ltd’s limit of liability as detailed in the Contract (particularly but without limitation Condition 6) will be sufficient to protect its interests, the Client should contact 1.618 Digital Ltd, as appropriate, and 1.618 Digital Ltd will be pleased to discuss with the Client whether it is able to amend its limits and/or increase its insurance cover accordingly. The Client accepts that 1.618 Digital Ltd shall be entitled to charge the Client, and the Client shall pay, an additional fee for accepting any different limit if 1.618 Digital Ltd, as appropriate, agrees to do so.
7.1 The Client shall only be entitled to cancel the Contract on prior written notice to 1.618 Digital Ltd and in accordance with Condition 4.2.
7.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other, if the other:
7.2.1 fails to pay when due any sums due under these Conditions;
7.2.2 commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within fourteen (14) days after being required by written notice to do so;
7.2.3 (in the case of a company) goes into liquidation, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed; or
7.2.4 (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
7.3 Upon the termination of the Contract for whatever reason, all Charges for the Direct Services carried out up until the date of termination shall become immediately due and payable by the Client to 1.618 Digital Ltd.
8.1 The Contract is personal to the Client and the Client shall not assign, transfer or sub-contract or purport to assign, transfer or sub-contract to any other person any of its rights or obligations under the Contract without the prior written consent of 1.618 Digital Ltd.
8.2 1.618 Digital Ltd may assign, transfer or subcontract any of its rights and obligations under the Contract to any other party without the consent of the Client.
8.3 Any notice required or permitted to be given under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
8.4 No failure or delay by 1.618 Digital Ltd in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by 1.618 Digital Ltd of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
8.5 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
8.6 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
8.7 English law shall apply to the Contract, and the parties agree to submit to the exclusive jurisdiction of the English Courts.