Terms of Business for Werth Represents
Agreement & Term
These Terms set out the terms and conditions under which WERTH REPRESENTS LIMITED, incorporated and registered in England and Wales with company number 13501499 whose registered office is at Ground Floor Marlborough House, 298 Regents Park Road, London, England, N3 2SZ (“Werth”, “We”, “Our”, “Us”) will provide Services to the person or the business named in the letter (the “Confirmation”) to which these terms are attached (“You” or “Your”).
Each time You wish Us to provide Services to You, We will scope those service, and indicate Fees, the Term of each engagement and timelines for delivery of those Services in a Confirmation. We ask that You sign each Confirmation to confirm agreement with the Services and Fees. These terms (this “Agreement”) and the Confirmation form the contract between us from the date of signature (the “Effective Date”).
The definitions and rules of interpretation used in these Terms are shown at the end of it.
Services Provided
We shall supply the Services set out in the Confirmation to You during the Term and/or on the dates shown for each Engagement, unless otherwise agreed in advance between Us and You.
In supplying the Services, We shall:
perform the Services with the due care, skill and diligence in accordance with best practice in Our industry;
co-operate with You in all matters relating to the delivery of Services, and comply with all reasonable instructions from You;
use personnel who are suitably skilled and experienced to perform tasks assigned to them as set out in a Confirmation;
ensure that We obtain, and maintain all consents, licences and permissions (statutory, regulatory, contractual or otherwise) required and which are necessary to enable Us to comply with Our obligations under these Terms;
ensure that the Services will conform with all descriptions and specifications set out in the Confirmation; ensure that all goods, materials, standards and techniques used in providing the Services are of high quality and are free from defects in workmanship, installation and design; comply with all applicable laws, statutes, regulations and any mandatory policies operated by You and supplied to Us which reasonably impact on the Services and which We have confirmed compliance with in writing to You;
observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Location; and
if We have agreed to supply a particular artist or performer, but that artist or performer is unable to attend for any reason, We will use all reasonable endeavours to replace that artist or performer with a suitable replacement of a similar level, skill-set and experience on prior written notice to You.
Customer’s Obligations
You shall:
co-operate with Us in all matters relating to the Services;
provide such access to the Location and to Your premises and facilities and to materials and data as We may reasonably require and as are agreed with You in writing in advance, for the purposes of providing the Services;
provide such information as We may reasonably request in order to carry out the Services in a timely manner;
inform Us of all health and safety rules and regulations and any other reasonable security requirements that apply in relation to the supply of Services at the Location.
Fees & Payment
We shall invoice the Fees shown in the Confirmation for provision of the Services in each Engagement.
On acceptance of the Engagement, we may invoice you for the Advance. The Advance is non-refundable as it may be used to secure suppliers for the Engagement. You acknowledge that any delay in payment of the Advance may cause delays in securing third party suppliers, venues or similar for the Engagement and may require changes to be made to the specification of it in the Confirmation and the Fees, which will be agreed with you in advance.
Each invoice shall include all supporting information reasonably required by You to verify the Services supplied under the invoice and shall be issued and paid in pounds in the currency specified in the Confirmation.
We may charge you for third party expenses incurred by Us in providing the Services (such as taxi fares, models, renderings) at the stated invoice value plus 15%. No other additional fees will be charged by us, unless agreed in writing with you in advance.
All invoices are payable within thirty (30) days of the date of invoice unless otherwise agreed in the Confirmation.
We may charge and You shall pay interest on any overdue Fees from the due date until payment (whether before or after judgment). Interest under this clause will accrue daily at the rate of 8% a year above the Bank of England’s base rate from time to time. In relation to payments disputed in good faith, interest under this clause is payable only after the dispute is resolved on sums found or agreed to be due, from the due date until payment.
In the Engagement that you do not pay the Fees (and interest) when due or in full, we reserve the right to cancel the Engagement, terminate this contract and retain the Advance and any part-payment of Fees and retain all media created by or for You under the provision of Services.
If, after the Engagement there remains an outstanding payment due from you of the Fee or any agreed charges, a final invoice of the outstanding balance due, will be sent to you and must be settled in full by you within 7 days of the date of the final invoice.
In the Engagement that the terms of invoicing or payment of Fees is different in the Confirmation the provisions in the Confirmation shall prevail. No other changes to the above provisions will apply unless agreed in writing in advance between You and Us.
Cancellation or Postponement of Engagement
Any Engagement may be cancelled by You and Fees will be charged or refunded as follows:
cancellation on eight or more Business Days will result in You being refunded 100% of the Fee less any Advance that has been applied and cannot be refunded.
cancellation on seven or less Business Days hours will result in You being charged 100% of the Fees.
Unless otherwise arranged, in the event of postponements due to adverse weather You will be charged 100% of the Fee if postponement is required due to weather conditions on location, and 50% of the Fee if postponement is required prior to departure to the location.
You may postpone any Engagement up to two times in any year of the Term by giving Us at least 14 days’ notice in writing. When You notify Us of your wish to postpose an Engagement, You will notify Us of the proposed alternative date for rescheduling the Engagement and We will notify You in writing if that alternative date is accepted by Us.. We undertake to use all reasonable endeavours to accommodate Your proposed postponement and to endeavour to provide that postponed Engagement within the six-month period following postponement of it by You but no postponement is agreed until We confirm acceptance of it in writing to You.
Any Engagement postponed by You and rearranged by Us may incur an additional administration fee of 15% of the Engagement cost to cover, (including but not limited to) reallocation of Our resources and short notice re-engagement of those parties specified in the Engagement.
Cancellation or postponement of any Engagement shall not affect provision of any other Engagement according to these Terms.
Data Protection & Confidentiality
During the Term, We and You will process, use, maintain and disclose Personal Information only as necessary for the specific purpose for which that Personal Information was disclosed and only in accordance with the express instructions in relation to its use given by the party disclosing it.
Each of You and Us shall ensure that we have in place appropriate technical, physical, administrative and organisational measures against unauthorised or unlawful processing of Personal Information and which prohibit against accidental destruction or loss of, or damage to Personal Data and that each will comply at all times with such data protection laws as are applicable to them and the Personal Data they collect, process and/control.
Neither You nor We shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms and Services connected with Engagement.
Each party may disclose the other party's Confidential Information as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Intellectual Property Rights
We own and shall at all times retain ownership of all Intellectual Property Rights in the Services and the output from each Engagement unless otherwise agreed in the Engagement.
We hereby grant to You a non-exclusive, royalty-free licence to use the Intellectual Property Rights in the Services during the Term, as well as extracts of the Services and the production and performance of Engagement for the purposes of promotion and marketing of Engagement by You on any media channel, provided always that We retain the right to object to derogatory treatment of our Intellectual Property Rights and to withdraw this licence with immediate effect on written notice to You.
We undertake and warrant that the receipt, use and onward supply of the Services by You shall not infringe the rights, including any Intellectual Property Rights, of any third party.
Publicity
Unless otherwise agreed in the applicable Engagement, We shall be permitted to make public announcements concerning Our work with You and to use extracts of Services, photographs and/or film of the Services across all media channels for our marketing portfolio and include reference to You in such use.
Limitation of liability
The restrictions on liability in this clause 9 apply to every liability arising under or in connection with these Terms under it, including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
Subject to clause 9.6 neither party to these Terms shall have any liability to the other party for indirect or consequential loss arising under or in connection with these Terms including but not limited to loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss.
Unless a party notifies the other party that it intends to make a claim in respect of an Engagement within the Claim Notification Period, the other party shall have no liability for that Engagement. Any notice given during the Claim Notification Period must be in writing and must identify the Engagement and the grounds for the claim in reasonable detail.
Our total liability to You however arising under or in connection with these Terms shall be limited to the Fees paid by You under these Terms to which the claim relates.
Your total liability to Us arising under or in connection with these Terms shall be limited to the value of all of the Services provided to You under the Confirmation they relate to.
Nothing in these Terms shall limit or exclude Our or Your liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; or any other liability which cannot be limited or excluded by applicable law.
Termination
Either party may terminate these Terms (and all Engagement hereunder) with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of these Terms and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
the other party repeatedly breaches any of the terms of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with the terms of these Terms;
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts, or it enters into negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors (other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party), or petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party) or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership).
any Engagement occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the Engagement mentioned in clause 10.1(c);
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
For the purposes of clause 10.1(a), “material breach” means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from these Terms and any of the obligations set out in it.
General Provisions
Force Majeure: Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure result from Engagement, circumstances or causes beyond its reasonable control (including but not limited to fire, flood, failure of electrical supply, strike action with a party unconnected with either party regulatory or governmental instruction). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 3 months, the party not affected may terminate these Terms by giving 14 days' written notice to the affected party. Strike action by rail network and/or railway workers is specifically excluded from the provisions of Force Majeure and the parties agree that any such industrial action taking place on the date of an Engagement will permit either party to postpone and rearrange that Engagement in addition to the provisions of clause 5.3.
Variation: No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver: A waiver of any right or remedy under these Terms or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
A failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Rights & Remedies: Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
Severance: If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.
If any provision or part-provision of these Terms is deemed deleted under clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision
Entire Agreement: These Terms and the Confirmation constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
Assignment & Other Dealings: Neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under these Terms without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
No Partnership or Agency: Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Third Party Rights: Each party confirms it is acting on its own behalf and not for the benefit of any other person and these Terms does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms.
Notices: Any notice or communication given to a party under or in connection with these Terms shall be in writing and shall either be delivered by hand, by next working day courier service or by first class post to its registered office (if a company) or its principal place of business (in any other case) or sent by email to the usual address for the senior manager or managing director with a sent and read receipt attached.
A notice or communication shall be deemed to have been received at the time the notice is left at the proper address if delivered by hand, on next working day if sent by courier service, at 9.00 am on the second Business Day after posting if sent by first-class post and at the time it is marked as read if sent by email.
Counterparts: These Terms may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. Transmission of an executed counterpart of these Terms (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed "wet-ink" counterpart of these Terms
Governing Law: These Terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms or its subject matter or formation.
APPENDIX 1: DEFINITIONS & INTERPRETATION
In the Agreement and the Confirmation, the following definitions apply:
Advance: the percentage of the Fee or the agreed sum that will be paid before commencement of the Services for costuming, props, or other supplies prior to provision of the Services which is shown as the “Advance” in the Confirmation.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Claim Notification Period: The period commencing on the date when the party wishing to make a claim for breach of these Terms became, or ought reasonably to have become, aware of the Engagement having occurred and shall expire twelve months from that date.
Confidential Information: any information concerning the staff, customers, clients, suppliers, pricing information, business or affairs, of a party to these Terms which could reasonably be considered to be business sensitive whether or not it is marked as such and in the case of Werth, Confidential Information includes its scripts, costume designs and any materials incidental to the production of Engagement.
Effective Date: is the earlier of the ‘Effective Date’ shown in the Confirmation, the date on which You sign the duplicate Confirmation or the date when You instruct Us to provide Services to You.
Confirmation: a letter from Us to You setting out the Services that We will provide to You, the date for it/their provision, the Fees and any other specifics relating to the nature and/or performance or performers.
Engagement(s): the occasion or date on which the Services are to be provided by Us to You at the Location as described in the Confirmation.
Fees: the charges for the Services supplied by Us to You and any other fees, cost or expenses provided set out in the Confirmation.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Location: the physical place or virtual location URL where you request that the Services are performed and/or supplied by Werth as shown in the Confirmation.
Personal Information means personally identifiable information as defined in the UK Data Protection Act 2018.
Services: the services and the Engagement, to be provided by Werth to You as detailed in the Confirmation.
Clause, Schedule and paragraph headings shall not affect the interpretation of these terms. The Schedules and Annexes form part of these terms and shall have effect as if set out in full in the body of these terms. Any reference to these terms includes the Schedules and Annexes.
Unless the context otherwise requires, words in the singular include the plural and vice versa; references to clauses are to the clauses of these terms; references to a statute or statutory provision is a reference to it as in force as at the date of these terms; a “person” includes a natural person, corporate or unincorporated body and any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
In the case of conflict or ambiguity between any provision contained in the body of these terms and any provision contained in the schedules or appendices, the provision in the body of these terms shall take precedence.