1.1 The following definitions in this condition apply in these terms
and conditions (Conditions).
Puur: Puur, 8 East Stockwell Street, Colchester. CO1 1SS
Commissioned Party: any third party who provides services and/or material in connection with the Services.
Contract: the contract between you and Puur incorporating these Conditions and the Proposal.
Demand: any action, award, claim or other legal recourse, complaint, cost, debt, demand, expense, fine, liability, loss, outgoing, penalty or proceeding.
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
In-put Material: all Documents, information and material(s) provided by you to Puur relating to the Services.
Intellectual Property Rights: all patents, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in designs, rights in computer software, moral rights, and any other intellectual property rights (whether registered or unregistered) and including all applications for and renewals or extensions of such rights, anywhere in the world.
Material: all Documents, products and material(s) (including, but not limited to, visual representations generated optically, digitally, electronically or by any other means, including any digital files, prints, film imprints, original digital files and any other product or media similar to any of them) supplied or sourced by Puur or its agents, subcontractors, consultants and employees, or any Commissioned Party, in relation to the Services in any form.
Puur Media: all Documents, information and material(s) provided
and owned or licensed by Puur relating to the Services.
Proposal: the Puur proposal attached to these Conditions.
Reproduce: any form of copying or publication (in whole or in part) via any media by whatever means, including (but not limited to) the creation of any derivative work(s).
Services: the services to be provided by Puur under the Contract as set out in the Proposal, together with any other services which Puur provides, or agrees to provide, to you.
You: the person, firm or company who purchases Services from Puur.
2. Application of conditions
2.1 Your purchase order, or your acceptance of the Proposal, constitutes an offer by you to purchase the Services specified in it on these Conditions and the terms contained in the Proposal. No offer placed by you shall be accepted by Puur other than:
(a) by a written acknowledgement issued by Puur; or
(b) (if earlier) by Puur starting to provide the Services, when a contract for the supply and purchase of the Services on these Conditions will be established. These Conditions together with the Proposal shall apply to and be incorporated into the Contract to the exclusion of all other terms and conditions.
2.2 Any quotation and proposals are given by Puur on the basis that no Contract shall come into existence except in accordance with condition 2.1. Any quotation or proposal is valid for a period of 30 days from its date, provided that Puur has not previously withdrawn it or amended it.
2.3 All advertising issued by Puur and any descriptions, illustrations, specifications, drawings and other particulars contained in its portfolios, marketing materials or on its website are published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract.
3. Puur’s obligations
3.1 The Services supplied under the Contract shall be provided by Puur
to you from the date specified in the Proposal.
3.2 Puur shall use reasonable endeavours to manage and provide the Services with reasonable care and skill, and (if applicable) to source or deliver the Material, in accordance in all material respects with the Proposal.
3.3 Puur shall use reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4. Your obligations
4.1 You shall:
(a) promptly co-operate with Puur in all matters relating to the Services;
(b) provide to Puur, in a timely manner, such In-put Material and other information as Puur may require and ensure that it is accurate in all material respects. You confirm that such In-put Material does not infringe any Intellectual Property Rights of a third party;
(c) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the use of In-put Material and the Material;
(d) be responsible for the review, negotiation and completion of all and any licences and agreements concerning the Material;
(e) strictly comply at all times with the terms of any licence or agreement concerning the Material and/or the Puur Media;
(f) not Reproduce any of the Material save in accordance with the terms of any applicable licence;
(g) be responsible for reviewing and satisfying yourself that the Material does not infringe any Intellectual Property Rights of a third party;
(h) ensure that all and any samples and unlicensed digital media is only used in accordance with Puur’s written authorisation and only for the purpose of evaluating such material and not for any other purpose nor shall it be commercially exploited or Reproduced by you;
(i) upon request immediately return to Puur all and any samples and unlicensed digital media and irretrievably delete any such material from your computer systems and any magnetic, optical disk or memory device;
(j) be responsible for the review, negotiation and completion of all and any agreements (including but not limited to licensing agreements, commissioning agreements, model and property release contracts)
with any Commissioned Party;
(k) pay all necessary fees, expenses and charges of third parties in connection with the supply of the Material and the Services.
4.2 If Puur’s performance of its obligations under the Contract is prevented or delayed by any act or omission of you, your agents, subcontractors, consultants or employees, Puur shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay.
4.3 You shall be liable to pay to Puur, on demand, all reasonable costs, charges or losses sustained or incurred by Puur (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of your obligations under the Contract, subject to Puur confirming such costs, charges and losses to you in writing.
5. Charges and payment
5.1 In consideration of the provision of the Services by Puur, you shall pay the charges, fees and expenses as set out in the Proposal. The Proposal shall specify whether Puur will charge on a time basis or a fixed price basis or a combination of both. Condition 5.2 shall apply if Puur provides Services on a time basis. Condition 5.3 shall apply if Puur provides Services for a fixed price. The remainder of this condition 5 shall apply in either case.
5.2 Where Services are provided on a time basis:
(a) the charges payable for the Services shall be calculated in accordance with Puur’s daily fee rates, as set out in the Proposal and as amended from time to time by Puur giving written notice to you;
(b) Puur’s daily fee rates for each individual person are calculated on the basis of an eight-hour day, working five days per week (excluding public holidays in England and Wales);
(c) Puur shall be entitled to charge an overtime rate based on a pro-rata amount of the standard daily fee rate for each part day or for any time worked on the Services outside the hours referred to in the Proposal;
(d) any charges, fees and expenses shall be calculated or referred to in the Proposal and shall be payable by you.
5.3 Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Proposal.
5.4 Unless stated otherwise all prices, fees and charges are exclusive of VAT, which shall be charged (if applicable) by Puur to you at the applicable rate.
5.5 You shall pay each invoice submitted to you by Puur, in full and in cleared funds, within 30 days of its date to a bank account nominated in writing by Puur. Fees are invoiced periodically as the project progresses. Payment is due once a project phase has been completed as per the proposal. Exact invoice dates depend on the nature and duration of the project, and will be agreed upon commencement of work.
5.6 If a retainer fee is negotiated, monthly invoices will be sent to you on the last working day of each month.
5.7 You agree that Puur may review and increase its charges provided that Puur gives you written notice of any such increase not less than 30 days before the proposed date of that increase.
5.8 Puur reserves the right to make additional charges in connection with any alterations to the Proposal or additional or unforeseen work requested by you or that is necessary in carrying out the Services. Puur will endeavour to give you written notice of any such additional charges.
5.9 Without prejudice to any other right or remedy that it may have, if you fail to pay Puur on the due date, Puur may:
(a) charge interest on such sum from the due date for payment at the annual rate of 8%, accruing on a daily basis and being compounded daily until payment is made;
(b) suspend all Services until payment has been made in full;
(c) terminate the Contract with immediate effect.
5.10 All sums payable to Puur under the Contract shall become due immediately on its termination, despite any other provision. This condition 5.10 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
5.11 You shall pay all legal costs and fees on an indemnity basis for the recovery of any sums due to Puur
6. Intellectual property rights
6.1 You acknowledge and agree that Puur does not own any of the Material, nor does it have the capacity to grant you rights or licenses in relation to the Material. Your use of the Material is conditional on you obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle you to make such use of the Material as you may require.
6.2 You shall fully indemnify Puur (on demand) against any Demand arising as a result of or in connectionwith:
(a) any action or claim that the In-put Materials infringe any Intellectual Property Rights of a third party;
(b) any breach by you of any licence relating to, or in connection with, the Material;
(c) any action or claim that the Materials or the use of them by
you infringe any Intellectual Property Rights of a third party;
(d) any unauthorised use by you of any samples or unlicensed digital media;
(e) any breach by you of any contract or agreement in relation to any Commissioned Party;
(f) any breach by you of any of your obligations under the Contract.
7. Confidentiality and Puur’s Media
7.1 You shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to you by Puur, its employees, agents, consultants or subcontractors and any other confidential information concerning Puur’s business or its products which you may obtain, save where any such disclosure may be required by law.
7.2 Puur retains all Intellectual Property Rights in the Puur Media and grants you a non-exclusive licence to such Intellectual Property Rights to the extent required to allow you to make use of the Services and the products of the Services.
7.3 All Intellectual Property Rights in any works arising in connection with the performance of the Services by Puur shall be the property of Puur, and Puur hereby grants you a non-exclusive licence to such Intellectual Property Rights to allow you to make use of the Services and the products of the Services.
7.4 Puur shall have the right to utilise and publish the products of the Services for the purpose of advertising and promoting its work and portfolio.
8. Limitation of liability –
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
8.1 This condition 8 sets out the entire financial liability of Puur (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to you in respect of:
(a) any breach of the Contract;
(b) any use made by you of the Services, the product of the Services, the Material, or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.3 Nothing in these Conditions limits or excludes the liability of Puur:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by you as a result of fraud or fraudulent misrepresentation by Puur.
8.4 Subject to condition 8.2 and condition 8.3, Puur shall not be liable for, loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of goods, loss of contract, loss of corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
8.5 Puur shall not be liable for costs, losses, damages, charges or expenses in relation to or in connection with the default, delay or cancellation of any Commissioned Party.
8.6 Puur’s total 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 Contract shall be limited to the price paid for the Services.
9.1 Without prejudice to any other rights or remedies which Puur may
have, Puur may terminate the Contract without liability to you immediately by giving written notice to you if:
(a) you commit a breach of any of the terms of the Contract; or
(b) you become insolvent, commit an act of bankruptcy, or a winding
up order is made against you, or you make any arrangements with your creditors, or any execution or distress is levied upon any of your property, or any judgment against you shall remain unsatisfied for 14 days; or
(c) you suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part of your business.
9.2 On termination of the Contract for any reason:
(a) you shall immediately pay to Puur all of Puur’s outstanding unpaid invoices and interest and, in respect of charges not yet invoiced or commitments entered into by Puur in connection with the Contract, but for which no invoice has been submitted, Puur may submit an invoice, which shall be payable immediately;
(b) the accrued rights of Puur as at termination of the Contract, shall not be affected by its termination.
9.3 The accrued rights of Puur and the liabilities of you as at termination
of the Contract shall not be affected by its termination.
10.1 You acknowledge and agree that details of your name, address and payment record may be submitted to a credit reference agency, and personal data may be processed by and on behalf of Puur in connection with the Contract.
10.2 Puur shall have no liability to you under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including the default of suppliers or subcontractors.
10.3 This Contract may only be amended or varied in writing signed by a duly authorised representative of Puur.
10.4 Puur may, without prejudice to any other rights it may have, set off any liability of you to Puur against any liability of Puur to you.
10.5 Puur may at any time assign, transfer, charge, mortgage, sub-contract or deal in any other manner with all or any of its rights under the Contract and may sub-contract or deal in any manner any or all of its obligations under the Contract to any third party. You shall not, without the prior written consent of Puur, assign, transfer, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract.
10.6 You acknowledge that, in entering into the Contract you have not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract). Nothing in these Conditions shall limit or exclude any liability for fraud.
10.7 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
10.8 If any provision of this Contract is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from the Contract and rendered ineffective as far as possible without modifying the remaining provisions of the Contract, and shall not in any way affect any other circumstances of or the validity or enforcement of the Contract.
10.9 For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Contract 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.
10.10 The validity, construction and performance of the Contract shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts.
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