Terms and conditions
SERVICES TERMS AND CONDITIONS
Agreement: these terms and conditions together with the SOW entered into between you (the Customer named in the SOW) and us (Earnest (London) Limited), to which they are attached or in which they are incorporated by reference, and any schedules to these terms and conditions or documents incorporated by reference.
Confidential Information: all information disclosed by a party to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Details of the Services constitute our Confidential Information. The terms of the Agreement are confidential.
Services: work performed by us and/or our affiliates, or our respective permitted subcontractors under the SOW including our provision of any Materials and Deliverables as specified in such SOW.
Deliverables: any tangible material delivered by us or other result of the Services provided to you by us as specified in the SOW.
Materials: means goods that we have purchased on your behalf or which we provide and which are used to create the Deliverables or supplied to you together with the Deliverables.
Statement of Work or SOW: a document describing the Services to be provided, that is entered into between you and us or a quotation issued by us which sets out the Services to be performed and the charges. These terms and conditions are incorporated into and apply to each SOW entered into between you and us and to each quotation issued by us to you.
2. Ordering Of Services And Commencement
2.1 An SOW shall be issued for each project. The scope, Materials, Deliverables, dependencies, fee rates, any estimated fees, costs for Materials, and any milestones (as applicable) for such project shall be set out in the applicable SOW.
2.2 These terms and conditions are binding as from the date of acceptance of the SOW by you or the date that we first start to perform Services for you (if sooner).
3. Fees, Expenses & Taxes
3.1 You will pay us for the Services at the rates specified in the SOW. Services are provided on [either] a time-and-materials [or fixed fee basis, as stipulated in the SOW.
3.2 You shall reimburse us for Materials in accordance with the cost model specified in the SOW.
3.3 You agree to reimburse our reasonable costs expenses (including for travel and subsistence) incurred in the provision of the Services and for the costs of all Materials. Wherever possible the costs for Materials will be agreed in the SOW.
3.4 Fees and expenses will be invoiced at the intervals specified in the SOW or, if none specified, when the Services under the SOW have been completed. Payment is due within thirty (30) days of the date of invoice. Unless otherwise indicated in the SOW, all payments are due in British Pounds Sterling and without set off or deduction of any kind. All prices specified are exclusive of VAT which shall be added and shall be payable by you. If you are a tax-exempt entity you must provide us with a copy of your tax-exemption certificate.
3.5 Overdue payments bear interest at the rate of 2% above the then-current base lending rate of the high street banks in England, or if lower, the highest rate allowed by law. We may suspend work if payments are overdue until such time as payment of all undisputed overdue amounts have been received in full by us.
3.6 We shall not exercise our rights under clause 3.5 where you have disputed an invoice and are working in good faith with us to resolve the dispute.
4. Our Policies
4.1 Your written approval (including by email) of copy, layout, storyboards and scripts will constitute our authorisation to purchase production Materials and to prepare proofs. Your written approval of proofs will be our authority to publish. Your written approval of television, cinema and radio scripts and/or storyboards with estimates or quotations of the production cost will be our authority to enter into production contracts and engage performers. Your written approval of films and recordings with estimates or quotations of the cost will be our authority to transmit. You shall respond to all requests for approval promptly and within any deadline specified in the SOW or that we reasonably stipulate.
4.2 If you cancel the Services under a SOW, you agree to pay us (and you remain liable for) all non-recoverable costs and expenses incurred by us prior to cancelation.
Any changes to a SOW must be reflected in a written and mutually executed change order to the applicable SOW or in a new SOW that replaces the applicable SOW that has been changed. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and timescales. We are not obligated to undertake any work not specified in a signed SOW.
6. Confidentiality And Data Protection
6.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
6.2 Each party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party for any purpose outside the Agreement and (ii) except as otherwise authorised by the other party in writing, limit access to Confidential Information of the other party to those of its employees and contractors who need that access for purposes consistent with the Agreement and who have signed confidentiality agreements containing protections not materially less protective of the Confidential Information than those herein.
6.3 A party may disclose Confidential Information of the other party to the extent compelled by law to do so, provided the party called on to make the compelled disclosure gives the other party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
6.4 Where, the Services involve processing of Personal Data, the parties agree to comply with the Data Processing Agreement which shall form part of the Agreement.
7. Intellectual Property and Ownership of Deliverables And Materials
7.1 You do not grant to us any rights in or to your intellectual property except such licenses as may be required for us to perform Our obligations under a SOW.
7.2 Unless otherwise specified in the SOW, upon your payment of fees due under the SOW, ownership in the Deliverables shall vest in you save that we retain all right, title and interest in our intellectual property used in the Deliverables and we grant to you a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to our intellectual property in the Deliverables for the purpose of making full use of the Deliverables.
7.3 Unless otherwise specified in the SOW, Ownership in the Materials shall pass to you upon payment to us of the costs of the Materials and risk in the Materials shall pass to you on delivery of the Materials to you.
7.4 You acknowledge and agree that nothing in the Agreement shall affect our right to use any general marketing or advertising intelligence gained by us in the course of our appointment, or our right to promote our own business by, for example, including the work created in our showreel, referring to you on our website, and for purposes associated with the entry and conduct of advertising industry awards schemes.
8. Warranty and Disclaimer
We warrant that the Services will be performed in a professional and workmanlike manner. For any breach of this warranty, your sole and exclusive remedy, and our entire liability shall be the re-performance of the non-conforming Services. We shall only have liability for such breaches of warranty if you provide written notice of the breach to us within fifteen (15) days of the performance of the applicable Services. The warranty and remedy in this section is in lieu of all other conditions, representations and warranties, express or implied, statutory or otherwise, including but not limited to any warranty of fitness for a particular purpose, satisfactory quality, usefulness or timeliness.
9. Limitation Of Liability
9.1 This Clause 9 sets out the entire financial liability of each party (including any liability for the acts or omissions of its employees, agents and sub-contractors) in respect of:
(a) any breach of the Agreement;
(b) any use made of the Materials and/or Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
9.2 Nothing in the Agreement excludes the liability of either party:
(a) for death or personal injury caused by such party’s negligence; or
(b) for fraud or fraudulent misrepresentation.
9.3 Subject to clause 9.2:
(a) neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
(b) each party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total fees paid under the applicable SOW giving rise to the liability.
10.1 Either party may terminate a SOW with or without cause at any time by giving the other party 30 days prior written notice. You shall be liable for all non-recoverable costs and expenses if it terminates a SOW pursuant to this clause.
10.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other:
(a) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or
(b) immediately on written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding (whether voluntary or involuntary), relating to insolvency, administration, receivership, administrative receivership, liquidation or assignment for the benefit of creditors or takes or suffers any similar or analogous procedure, action or event in consequence of debt in any jurisdiction.
10.3 On termination of this Agreement for any reason each party shall return and make no further use of any equipment, property, material and other items (and all copies of them) and all Intellectual Property Rights belonging to the other party.
10.4 Upon any termination of a SOW, you will pay, in accordance with the Fees, Expenses and Taxes section of this Agreement, any unpaid fees, costs and expenses incurred on or before the termination date (such Services fees to be paid on a time-and-materials or percent-of-completion basis, as appropriate). In the event that you terminate the SOW for cause and you have pre-paid any fees for Services not yet received, we will refund such pre-paid fees. In the event that we terminate the SOW for cause, any pre-paid fees for Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in an SOW.
10.5 The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
11. General Terms
11. 1 Staffing, Independent Contractor. The parties are and shall act as independent contractors and not as an agent or partner of, or joint venturer with the other party for any purpose and neither party shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party. We shall assign appropriately qualified staff or sub-contractors, to perform the Services which may include staff provided by an affiliate. We may subcontract some or all of the Services to a third party or an affiliate provided we remain liable for the performance of any such sub-contractor.
11.2 Governing Law and Jurisdiction. This Agreement shall be governed by and construed according to the laws of England, and the parties submit to the non-exclusive jurisdiction of the English courts.
11.3 Entire Agreement. These Terms and Conditions and any documents incorporated by reference herein and each SOW form the entire agreement between you and us regarding the provision and use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Each of the parties acknowledges and agrees that in entering into an SOW it accepts these Terms and Conditions as binding and it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement. In the event of any conflict or inconsistency between the provisions in the body of these Terms and Conditions and any SOW, the terms of such SOW will prevail.
11.4 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.5 Severance. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
11.6 Third Party Rights. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
11.7 Force Majeure. We shall have no liability to you under the Agreement if we are prevented from or delayed in performing Our obligations under the Agreement, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.
11.8 Notices. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes or sent by email, save that legal notices shall also be sent by post. Invoices and billing notices shall be sent by email to the address given for such by you in the SOW. Notices will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c) the day of sending by email.
11.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld), provided however, either party may assign the Agreement in its entirety (including all SOWs), without the other party’s consent, to its affiliate (that is majority owned or controller or under common control) or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.)
11.10 Announcements. You agree that we may announce our working relationship and our appointment to provide Services, for example including as a blog announcement appearing on our website and social channels – subject to your approval of the specific announcement wording.
WEBSITE TERMS AND CONDITIONS
- Definitions and Interpretation
- In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
|means any and all text, images, audio, video, scripts, code, software, databases and any other form of information capable of being stored on a computer that appears on, or forms part of, Our Site; and|
|means Earnest (London) Limited , a limited company registered in England under 6968614, whose registered address is 23 Fitzroy Street, London, W1T 4BP and whose main trading address is 23 Fitzroy Street, London, W1T 4BP|
- Information About Us
- Our Site, www.earnest-agency.com, is owned and operated by Earnest (London) Limited a limited company registered in England under 6968614, whose registered address is 23 Fitzroy Street, London, W1T 4BP and whose main trading address is 23 Fitzroy Street, London, W1T 4BP. Our VAT number is 981 8039 90.
- Access to Our Site
- Access to Our Site is free of charge.
- It is your responsibility to make any and all arrangements necessary in order to access Our Site.
- Access to Our Site is provided “as is” and on an “as available” basis. We may alter, suspend or discontinue Our Site (or any part of it) at any time and without notice. We will not be liable to you in any way if Our Site (or any part of it) is unavailable at any time and for any period.
- Intellectual Property Rights
- All Content included on Our Site and the copyright and other intellectual property rights subsisting in that Content, unless specifically labelled otherwise, belongs to or has been licensed by Us. All Content is protected by applicable United Kingdom and international intellectual property laws and treaties.
- Subject to sub-Clauses 4.3 and 4.6 you may not reproduce, copy, distribute, sell, rent, sub-licence, store, or in any other manner re-use Content from Our Site unless given express written permission to do so by Us.
- You may:
- Access, view and use Our Site in a web browser (including any web browsing capability built into other types of software or app);
- Download Our Site (or any part of it) for caching;
- Print pages from Our Site;
- Download extracts from pages on Our Site; and
- Save pages from Our Site for later and/or offline viewing.
- Our status as the owner and author of the Content on Our Site (or that of identified licensors, as appropriate) must always be acknowledged.
- You may not use any Content saved or downloaded from Our Site for commercial purposes without first obtaining a licence from Us (or our licensors, as appropriate) to do so. This does not prohibit the normal access, viewing and use of Our Site for general information purposes whether by business users or consumers.
- Nothing in these Terms and Conditions limits or excludes the provisions of Chapter III of the Copyrights, Designs and Patents Act 1988 ‘Acts Permitted in Relation to Copyright Works’, covering in particular the making of temporary copies; research and private study; the making of copies for text and data analysis for non-commercial research; criticism, review, quotation and news reporting; caricature, parody or pastiche; and the incidental inclusion of copyright material.
- Links to Our Site
- You may link to Our Site provided that:
- You do so in a fair and legal manner;
- You do not do so in a manner that suggests any form of association, endorsement or approval on Our part where none exists;
- You do not use any logos or trade marks displayed on Our Site without Our express written permission; and
- You do not do so in a way that is calculated to damage Our reputation or to take unfair advantage of it.
- You may link to any page of Our Site.
- Framing or embedding of Our Site on other websites is not permitted without Our express written permission. Please contact Us at [email protected] for further information.
- You may not link to Our Site from any other site the main content of which contains material that:
- is sexually explicit;
- is obscene, deliberately offensive, hateful or otherwise inflammatory;
- promotes violence;
- promotes or assists in any form of unlawful activity;
- discriminates against, or is in any way defamatory of, any person, group or class of persons, race, sex, religion, nationality, disability, sexual orientation, or age;
- is intended or is otherwise likely to threaten, harass, annoy, alarm, inconvenience, upset, or embarrass another person;
- is calculated or is otherwise likely to deceive another person;
- is intended or is otherwise likely to infringe (or to threaten to infringe) another person’s privacy;
- misleadingly impersonates any person or otherwise misrepresents the identity or affiliation of a particular person in a way that is calculated to deceive (obvious parodies are not included in this definition provided that they do not fall within any of the other provisions of this sub-Clause 5.4);
- implies any form of affiliation with Us where none exists;
- infringes, or assists in the infringement of, the intellectual property rights (including, but not limited to, copyright, trade marks and database rights) of any other party; or
- is made in breach of any legal duty owed to a third party including, but not limited to, contractual duties and duties of confidence.
- You may link to Our Site provided that:
- Links to Other Sites
Links to other sites may be included on Our Site. Unless expressly stated, these sites are not under Our control. We neither assume nor accept responsibility or liability for the content of third party sites. The inclusion of a link to another site on Our Site is for information only and does not imply any endorsement of the sites themselves or of those in control of them.
- Nothing on Our Site constitutes advice on which you should rely. It is provided for general information purposes only.
- Insofar as is permitted by law, We make no representation, warranty, or guarantee that Our Site will meet your requirements, that it will not infringe the rights of third parties, that it will be compatible with all software and hardware, or that it will be secure.
- We make reasonable efforts to ensure that the Content on Our Site is complete, accurate, and up-to-date. We do not, however, make any representations, warranties or guarantees (whether express or implied) that the Content is complete, accurate, or up-to-date.
- Our Liability
- To the fullest extent permissible by law, We accept no liability to any user for any loss or damage, whether foreseeable or otherwise, in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising out of or in connection with the use of (or inability to use) Our Site or the use of or reliance upon any Content included on Our Site.
- To the fullest extent permissible by law, We exclude all representations, warranties, and guarantees (whether express or implied) that may apply to Our Site or any Content included on Our Site.
- If you are a business user, We accept no liability for loss of profits, sales, business or revenue; loss of business opportunity, goodwill or reputation; loss of anticipated savings; business interruption; or for any indirect or consequential loss or damage.
- We exercise all reasonable skill and care to ensure that Our Site is free from viruses and other malware. We accept no liability for any loss or damage resulting from a virus or other malware, a distributed denial of service attack, or other harmful material or event that may adversely affect your hardware, software, data or other material that occurs as a result of your use of Our Site (including the downloading of any Content from it) or any other site referred to on Our Site.
- We neither assume nor accept responsibility or liability arising out of any disruption or non-availability of Our Site resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, communications network failure, natural events, acts of war, or legal restrictions and censorship.
- Nothing in these Terms and Conditions excludes or restricts Our liability for fraud or fraudulent misrepresentation, for death or personal injury resulting from negligence, or for any other forms of liability which cannot be excluded or restricted by law. For full details of consumers’ legal rights, including those relating to digital content, please contact your local Citizens’ Advice Bureau or Trading Standards Office.
- Viruses, Malware and Security
- We exercise all reasonable skill and care to ensure that Our Site is secure and free from viruses and other malware.
- You are responsible for protecting your hardware, software, data and other material from viruses, malware, and other internet security risks.
- You must not deliberately introduce viruses or other malware, or any other material which is malicious or technologically harmful either to or via Our Site.
- You must not attempt to gain unauthorised access to any part of Our Site, the server on which Our Site is stored, or any other server, computer, or database connected to Our Site.
- You must not attack Our Site by means of a denial of service attack, a distributed denial of service attack, or by any other means.
- By breaching the provisions of sub-Clauses 9.3 to 9.5 you may be committing a criminal offence under the Computer Misuse Act 1990. Any and all such breaches will be reported to the relevant law enforcement authorities and We will cooperate fully with those authorities by disclosing your identity to them. Your right to use Our Site will cease immediately in the event of such a breach.
- Acceptable Usage Policy
- You may only use Our Site in a manner that is lawful. Specifically:
- you must ensure that you comply fully with any and all local, national or international laws and/or regulations;
- you must not use Our Site in any way, or for any purpose, that is unlawful or fraudulent;
- you must not use Our Site to knowingly send, upload, or in any other way transmit data that contains any form of virus or other malware, or any other code designed to adversely affect computer hardware, software, or data of any kind; and
- you must not use Our Site in any way, or for any purpose, that is intended to harm any person or persons in any way.
- We reserve the right to suspend or terminate your access to Our Site if you materially breach the provisions of this Clause 10 or any of the other provisions of these Terms and Conditions. Specifically, We may take one or more of the following actions:
- suspend, whether temporarily or permanently, your right to access Our Site;
- issue you with a written warning;
- take legal proceedings against you for reimbursement of any and all relevant costs on an indemnity basis resulting from your breach;
- take further legal action against you as appropriate;
- disclose such information to law enforcement authorities as required or as We deem reasonably necessary; and/or
- any other actions which We deem reasonably appropriate (and lawful).
- We hereby exclude any and all liability arising out of any actions (including, but not limited to those set out above) that We may take in response to breaches of these Terms and Conditions.
- You may only use Our Site in a manner that is lawful. Specifically:
- Privacy and Cookies
- Changes to these Terms and Conditions
- We may alter these Terms and Conditions at any time. Any such changes will become binding on you upon your first use of Our Site after the changes have been implemented. You are therefore advised to check this page from time to time.
- In the event of any conflict between the current version of these Terms and Conditions and any previous version(s), the provisions current and in effect shall prevail unless it is expressly stated otherwise.
- Contacting Us
To contact Us, please email Us at [email protected] or using any of the methods provided on Our contact page.
- Communications from Us
- If We have your contact details, We may from time to time send you important notices by email. Such notices may relate to matters including, but not limited to, service changes and changes to these Terms and Conditions.
- We will never send you marketing emails of any kind without your express consent. If you do give such consent, you may opt out at any time. Any and all marketing emails sent by Us include an unsubscribe link. If you opt out of receiving emails from Us at any time, it may take up to 5 business days for Us to comply with your request. During that time, you may continue to receive emails from Us.
- For questions or complaints about communications from Us (including, but not limited to marketing emails), please contact Us at [email protected]
- Data Protection
- Any and all personal information that We may collect will be collected, used and held in accordance with the provisions of the Data Protection Act 1998 and your rights and Our obligations under that Act.
- We may use your personal information to:
- Reply to any communications you send to Us;
- We will not pass on your personal information to any third parties.
- Law and Jurisdiction
- These Terms and Conditions, and the relationship between you and Us (whether contractual or otherwise) shall be governed by, and construed in accordance with, English law.
- If you are a consumer, any disputes concerning these Terms and Conditions, the relationship between you and Us, or any matters arising therefrom or associated therewith (whether contractual or otherwise) shall be subject to the jurisdiction of the courts of England, Wales, Scotland, or Northern Ireland, as determined by your residency.
- If you are a business, any disputes concerning these Terms and Conditions, the relationship between you and Us, or any matters arising therefrom or associated therewith (whether contractual or otherwise) shall be subject to the exclusive jurisdiction of the courts of England and Wales.