Terms & Conditions of Services
1. The Agreement
1.1 The instruction by the Client to Air Picture Company to engage the Services shall be deemed to mean that the Client has accepted Air Picture Company’s proposal and has agreed that these terms and conditions (“Terms”) will apply to the contract.
1.2 Air Picture Company shall provide the services (“the Services”) as set out in the verbal or written proposal, to the Client subject to these Terms. Any changes or additions to the Services or these Terms must be agreed in writing by Air Picture Company and the Client.
1.3 The Services supplied to the Client under these Terms shall be supplied by Air Picture Company and purchased by the Client for the fixed duration as set out in the provided proposal, (unless terminated earlier in accordance with condition 5).
1.4 The Client shall at its own expense supply Air Picture Company with all necessary documents or other materials, and all necessary data or other information relating to the Services (“Client Material”), within sufficient time to enable Air Picture Company to provide Services in accordance with this contract. The Client shall ensure the accuracy of all Client Material.
1.5 The Services shall be provided in accordance with any proposal issued by Air Picture Company or otherwise in accordance with Air Picture Company’s current brochure relating to the Services from time to time, subject to these Terms.
1.6 All specifications, drawings, descriptions, story boards and illustrations that Air Picture Company provides to the Client are for the sole purpose of giving the Client an approximate idea of the Services that Air Picture Company will supply or carry out. Where the Client signs such specifications, drawings, descriptions, designs, story boards or illustrations to indicate its approval of them then this will be taken as conclusive evidence of the Services which Air Picture Company has agreed to supply or carry out.
1.7 Air Picture Company may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Services without any liability to the Client.
1.8 Air Picture Company may at any time without notifying the Client make any changes to the 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 Hardware or Services.
2. Charges
2.1 Subject to any special terms agreed, the Client shall pay Air Picture Company’s charges for the Services as set out in the attached proposal and any additional sums which are agreed between Air Picture Company and the Client for the supply of the Services or which, in Air Picture Company’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any information provided by the Client to Air Picture Company or any other cause attributable to the Client.
2.2 All charges quoted to the Client for the supply of Services are exclusive of any Value Added Tax.
2.3 The Client shall pay 50% of project costs before Commencement of work. The balance, including any agreed expenses incurred throughout production, must be settled before final content is released at project Completion.
2.4 If payment is not made on the due date, Air Picture Company shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 from the due date until the outstanding amount is paid in full.
2.5 Cancellations made beyond the point of agreeing project commencement will be subject to a cancellation fee of 25% of the agreed project costs.
2.6 Any Client wishing to pay subject to clauses 2.0 to 2.5, may do so using a valid debit or credit card. All transactions processed on this basis shall be subject to a 2% charge, which will be specified in supporting documents issued at the Commencement and Completion stages.
3. Intellectual Property Rights
3.1 In these Terms, “Intellectual Property Rights” shall mean all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
3.2 The Intellectual Property Rights in any copy, artwork, plans, film, photography,
transparencies, recordings, soundtracks, software and any other material (“Air Picture Company’s Material”) provided by Air Picture Company shall, unless otherwise agreed in writing between the Client and Air Picture Company, belong to Air Picture Company.
3.3 Air Picture Company grants the Client a non-exclusive, worldwide, free of charge license, to such extent as is necessary to enable the Client to make reasonable use of Air Picture Company’s Material and the Services for the purpose stipulated in the attached proposal only. In the event that the Customer wishes to use Air Picture Company’s Material and the Services for any other purpose then Air Picture Company will grant the Client a further licence subject to the payment by the Client of a fair and reasonable licence fee. If this agreement is terminated, this licence will automatically terminate.
3.3 Any Air Picture Company’s Material or other information provided to the Client by Air Picture Company shall be kept confidential by the Client; but the foregoing shall not apply to any documents or other materials, data or other information which are public knowledge at the time when they are so 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.
3.4 The Client warrants that any materials provided to Air Picture Company by the Client and used by Air Picture Company for the purpose of providing the Services will not infringe the Intellectual Property Rights of any third party, and the Client shall indemnify Air Picture Company against any loss, damages, costs, expenses or other claims arising from any such infringement.
3.5 Any Air Picture Company’s Material or other information provided to the Client by Air Picture Company shall be kept confidential by the Client; but the foregoing shall not apply to any documents or other materials, data or other information which are public knowledge at the time when they are so 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.
3.6 The Client warrants that any materials provided to Air Picture Company by the Client and used by Air Picture Company for the purpose of providing the Services will not infringe the Intellectual Property Rights of any third party, and the Client shall indemnify Air Picture Company against any loss, damages, costs, expenses or other claims arising from any such infringement.
4. Warranties and Liability
4.1 Air Picture Company warrants to the Client that the Services will be provided using
reasonable care and skill and, as far as reasonably possible, in accordance with the proposal. Where in connection with the provision of the Services Air Picture Company supplies any goods or services obtained from a third party, Air Picture Company does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to Air Picture Company.
4.2 Air Picture Company shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any information, material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
4.3 Except in respect of death or personal injury caused by Air Picture Company’s negligence, or as expressly provided in these Terms, Air Picture Company 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 this contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Air Picture Company, its servants or agents or otherwise) which arise out of or in connection with the provision of the Services or supply of Hardware or their use by the Client, and the entire liability of Air Picture Company under or in connection with this contract shall not exceed the amount of Air Picture Company’s charges for the provision of the Services or supply of Hardware, except as expressly provided in these Terms.
4.4 Completion dates are estimates only and no guarantees can be given by Three Motion
Media that the completion date will be achieved. Whilst Air Picture Company will make reasonable efforts to meet the agreed completion date, Air Picture Company shall not be liable for any delay in failing to do so.
4.5 Air Picture Company shall not be liable to the Client or be deemed to be in breach of this contract by reason of any failure to perform any of Air Picture Company’s obligations in relation to the Services or supply of Hardware, if the delay or failure was due to any cause beyond Air Picture Company’s reasonable control.
5. Termination
5.1 Either party may (without limiting any other remedy) at any time terminate this contract by giving written notice to the other if the other commits any breach of these Terms and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed.
6. Publicity
6.1 Air Picture Company may use any work or part thereof made under the contract in its own publicity material without the prior written consent of the Client. In the event that the Clients work is commercially sensitive, we will seek permission prior to using material.
7. General
7.1 These Terms together with the details in a given proposal constitutes the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
7.2 A notice required or permitted to be given by either party to the other under these Terms 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.
7.3 No failure or delay by either party in exercising any of its rights under this contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of this contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
7.4 If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
7.5 If any dispute arises out of this Agreement the parties will attempt to settle it by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure.
7.6 English law shall apply to this contract, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.