DAVIDIAN CREATIVE LTD. EMAIL Terms & Conditions

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DAVIDIAN CREATIVE Ltd. - Standard terms & Conditions (v1 Mar 2022)

Definitions

1 | In these terms & conditions, the following terms are defined as follows:

‘DAVIDIAN CREATIVE’ means DAVIDIAN CREATIVE LTD. of 171 Ladygate Lane, Ruislip, Middlesex, HA4 7RD (Company No. 13882667);

‘the Client’ means the person, firm, company or other entity to whom this document is addressed;

‘the Engagement’ means the contract to which these conditions apply and which incorporates these conditions.

‘the Goods’ means any assets, rushes, films, negatives, hard drives, files, data or materials (whether physical, digital or otherwise) which are provided to the Client by DAVIDIAN CREATIVE pursuant to an Engagement.

The Engagement

2.1 | All services are offered and all contracts are entered into subject to the following terms. All other terms, conditions or warranties whatsoever are, to the maximum extent permitted by law, excluded from the contract or any variation thereof unless expressly accepted by DAVIDIAN CREATIVE in writing.

2.2 | If any provision of these conditions is adjudged by a court to be void or unenforceable, the same shall in no way affect any other provision of this contract or the validity or enforceability of this contract generally.

2.3 | These conditions shall be incorporated into any contract between DAVIDIAN CREATIVE and the Client
to the exclusion of any terms or conditions stipulated or referred to by the Client. Any dealings with DAVIDIAN CREATIVE following receipt by the Client of notice of these conditions shall be deemed acceptance thereof.

2.4 | For the purposes of the Contracts (Rights of Third Parties) Act 1999 the Engagement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.

2.5 | The Engagement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between DAVIDIAN CREATIVE and the Client other than the contractual relationship expressly provided for in the Engagement.

Fees

3.1 | All fees quoted are exclusive of VAT and an estimate only and subject to variation. Daily and/ or hourly rates will be agreed for the services to be provided in advance of any Engagement.

3.2 | All invoices rendered by DAVIDIAN CREATIVE are payable within 30 days of the invoice date.

3.3 | If payment of an invoice referred to at clause 3.2 above is not received within 30 days of the invoice date, DAVIDIAN CREATIVE shall be entitled (without prejudice to any other right or remedy) to charge interest on the outstanding amount at the rate of 4% per annum above the base lending rate of Barclays PLC, accruing daily; to require that the Client make a payment in advance of any services not yet supplied; and/or not provide any further services to the Client further to the Engagement.

Performance & Delivery

4.1 | Unless otherwise agreed in writing, all times quoted for performance or delivery or availability for collection are given in good faith but are not guaranteed. Notwithstanding that DAVIDIAN CREATIVE and the Client may have agreed that time is of the essence, the time for performance or delivery is dependent upon prompt receipt of all necessary information, instructions and/or approval from the Client. Alterations by the Client of its requirements may result in delay in performance and delivery of an Engagement.

4.2 | The Client acknowledges and agrees that for DAVIDIAN CREATIVE to be able to provide the services under the Engagement the Client shall:
i. co-operate with DAVIDIAN CREATIVE as DAVIDIAN CREATIVE reasonably requires;
ii. provide to DAVIDIAN CREATIVE such information and media as DAVIDIAN CREATIVE reasonably requires; and
iii. instruct the Client’s staff and agents to co- operate and assist DAVIDIAN CREATIVE.

4.3 | DAVIDIAN CREATIVE may charge the Client for any additional reasonable costs and expenses incurred by DAVIDIAN CREATIVE caused by the Client’s instructions, failure to provide instructions, or failure to comply with Clause 4.2.

4.4 | DAVIDIAN CREATIVE shall be under no liability in respect of any loss or damage to the Goods, which at all times during the Engagement remain the Client’s sole responsibility. The Client shall maintain a copy of all Goods used during the Engagement.

4.5 | Where it is agreed that the Goods will be sent to the Client or third party by post, by courier, or by hand, DAVIDIAN CREATIVE shall be under no liability in respect of any loss or damage to the Goods.

4.6 | Where it is agreed that the Goods are to be delivered electronically (whether over the internet or otherwise) the Client acknowledges that this may not be a completely secure form of communication and that an unauthorised third party may intercept, tamper with or delete Goods, over which DAVIDIAN CREATIVE has no control. DAVIDIAN CREATIVE shall not be responsible for and shall have no liability to the Client or any third party for any delay / non receipt / unauthorised access / disclosure of any Goods delivered electronically.

4.7 | Unless otherwise agreed in writing DAVIDIAN CREATIVE is under no duty to maintain copies of the Goods after completion of the Engagement.

Cancellation Of An Engagement

5 | Any contract between DAVIDIAN CREATIVE and the Client may only be cancelled by written notice being provided to DAVIDIAN CREATIVE. If a confirmed Engagement is cancelled less than 24 hours prior to the commencement date, DAVIDIAN CREATIVE may at its sole discretion charge the Client full rate for the booked time at the full agreed daily rate. For cancelled confirmed Engagements with more than 24 hours notice prior to the commencement date, DAVIDIAN CREATIVE may at its sole discretion charge the Client half rate for the booked time at the full agreed daily rate.

Limitation Of Liability

6.1 | Except in the case of death or personal injury caused by DAVIDIAN CREATIVE’s negligence, The Client agrees that DAVIDIAN CREATIVE’s entire liability for any direct loss suffered by the Client, as a result of DAVIDIAN CREATIVE’s breach of the contract be limited to the amount actually paid by the Client in accordance with the contract.

6.2 | DAVIDIAN CREATIVE shall not be liable to the Client in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Client of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.

The Client confirms that in entering into the Engagement, it does not do so in reliance on any representation, warranty or other provision from DAVIDIAN CREATIVE except as expressly provided in the Engagement, and any conditions, warranties or other terms implied by statute or common law are excluded from the Engagement to the fullest extent permitted by law. Nothing in the Engagement excludes DAVIDIAN CREATIVE’s liability for fraud.

6.3 | The Client shall indemnify DAVIDIAN CREATIVE from and against all Claims, Losses or proceedings taken against DAVIDIAN CREATIVE by any third party (including any client of the Client), the Client’s employees or the employees of any contractor employed by the Client, in connection with or arising from the services provided by DAVIDIAN CREATIVE to the Client under the Engagement. ‘Claims’ shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and ‘Losses’ shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.

6.4 | The Client expressly agrees that it will at all times maintain and keep effective insurance policies with reputable insurers with sufficient cover which protect the Client against any loss or liability which it may incur or suffer arising out of the contract or any act or default of DAVIDIAN CREATIVE in the performance by DAVIDIAN CREATIVE of its obligations to the Client. DAVIDIAN CREATIVE accepts no liability for any liability or loss which arises from any failure by the Client to maintain and keep effective such insurances.

6.5 | Any recommendations or suggestions relating to the use of any Goods supplied by DAVIDIAN CREATIVE are given in good faith but it is for the Client to satisfy itself of the suitability of the Goods for its own particular purpose.

Sub-Contracting

7 | DAVIDIAN CREATIVE shall be entitled from time to time to appoint one or more sub-contractors to carry out all or any of its obligations under any contract between DAVIDIAN CREATIVE and the Client.

Intellectual Property

8.1 | The Client shall indemnify DAVIDIAN CREATIVE from and against all actions, claims, costs, charges, expenses and proceedings arising from or incurred by reason of any matter or any infringement or alleged infringement of any patent, trademark, copyright, registered design or design copyright or other exclusive right including any moral right claim or any other title of any third party in respect of any work carried out for the Client by DAVIDIAN CREATIVE.

8.2 | The Client agrees that copyright in underlying materials processed by DAVIDIAN CREATIVE in the performance of its services and/or included in materials produced by DAVIDIAN CREATIVE may be owned by third parties and that the use by the Client of all materials processed and/or produced by DAVIDIAN CREATIVE shall be subject always to the Client obtaining any necessary licences and consents from the relevant underlying rights owner(s).

8.3 | Unless otherwise agreed in writing DAVIDIAN CREATIVE has the right to use completed and publicly available material from the Engagement for the purpose of DAVIDIAN CREATIVE’s portfolio and showreel content.

Force Majeure

9 | In the event of the performance of any obligation accepted by DAVIDIAN CREATIVE being prevented, delayed, or in any way interfered with by any act of government, war, strike, breakdown of machinery or equipment, accident, fire or by any other cause beyond DAVIDIAN CREATIVE’s control, DAVIDIAN CREATIVE may at its option; suspend performance or cancel its obligations under the contract without liability for any damage or consequential loss resulting there from.

Law & Jurisdiction

10 | The contract shall be governed by the laws of England and any disputes shall be subject to the exclusive jurisdiction of the English Courts.