Terms and Conditions

Broadsword Terms and Conditions

These terms and conditions (the "Terms") shall apply to all goods and/or services (together the "Services") supplied by Broadsword Production Group Ltd (“We”, “Us”, “Our”) to the client ("You", “Your”) named on the corresponding Proposal.

Jointly we shall be referred to as “Both of Us”.

1. Definitions

The following terms have the meanings set forth below whenever they are used in these Terms:

 

“Applicable Laws”

means any applicable laws, regulations or guidance relating to marketing communications, including but not limited to the Data Protection Act 1998, General Data Protection Regulation 2016/679, Privacy and Electronic Communications (EC Directive) Regulations 2003, and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated. The terms “Personal Data”, “Data Controller”, “Data Processor” and “process” (in the context of usage of Personal Data shall have the meanings given to them in the applicable data protection legislation.

“Brief”

means the brief provided by You, and agreed by Us, as set out or referred to in the applicable Proposal.

“Change Request”

means changes requested or required by You in accordance with Clause 7.

"Charges"

means the fee payable by You to Us in respect of the Services as set out in the applicable Proposal.

"Contract"

means these Terms together with an agreed Proposal.

“Client Data”

means any data file provided by You to Us which includes Personal Data (as defined by the applicable Data Protection Legislation).

“Deliverables”

means the Final Production Design document, client specific branded goods (including Supplied Accessories) and supplied audio/visual work as outlined in the Proposal.

“Fees”

means all monies due from You to Us in consideration of the Services and as outlined in the Proposal.

“Final Production Design”

means the Production Design accepted, or deemed accepted, by You.

“Production Design”

means Our design and concept which We develop for You as a pre-Contract activity in response to your Brief.

“Intellectual Property Rights”

means all copyright, patents, trademarks and trade names, design rights, inventions, know-how and other intellectual property rights including applications for registration and right to make such applications.

“Production”

means the delivery of Services, Supplied Equipment, Supplied Accessories and Deliverables in accordance with the Proposal.

"Project Plan"

means the plan for the delivery of the Services set out or referenced in the applicable Proposal or Statement of Work (if applicable) or otherwise agreed by Both of Us in writing.

“Proposal”

means Our written proposal for the provision of Services, which has been agreed by You, setting out a description of the Services and Deliverables to be supplied, together with the applicable Charges and which may be in the form of a proposal, a quotation or a statement of work and which specifies:

(a) that it is subject to these Terms, (b) a description of the Services and Deliverables to be supplied, together with the applicable Charges (c) the timelines and (d) any assumptions and specific obligations for You that will apply to the Statement of Work.

"Services"

means, as applicable and as set out in the relevant Proposal or Statement of Work (if applicable); the design services, the production activities (including set design, audio-visual and lighting provision and staffing).

“Supplied Accessories”

means the items we make available to You, such as branded products, on a purchase basis as part of the Service and as specified in the Proposal.

“Supplied Equipment”

means the equipment that we make available to You on a hire basis as part of the Services and as specified in the Proposal.

"Your Materials"

means the information, designs, and all other materials provided by You in order for Us to perform Our obligations including, but not limited to; Your written Brief, content and images.

 

2. Contract Formation

2.1. Each Proposal, signed and accepted by You shall form a separate legally binding Contract for Your purchase, and Our delivery, of Our Services in respect of the Production and will be independent of all other contracts which exist between Both of Us.

2.2. Any terms and conditions set out in any purchase order or other document supplied by You that are in addition to or at variance with these Terms shall not apply unless We expressly agree otherwise.

2.3. If any of these Terms are inconsistent with the Proposal, the Proposal shall prevail.

3. Production Design

3.1. Upon receipt of Your Brief, We shall create a Production Design based on the information provided to Us by You and We will submit the Production Design to You as part of Our Proposal.

3.2. You may request updates to the Production Design provided within one (1) week of receipt, however, the updates made by Us will be limited to one (1) set of revisions based on Your feedback.

3.3. If it becomes evident that:

3.3.1. the Production is complex and requires more detailed analysis and design work; and/or

3.3.2. if You continue to request additional changes;

such changes to the Production Design will fall outside the scope of clause 3.2 and will be chargeable at Our then current daily rates. We will seek Your approval prior to proceeding with such additional design work.


 

 

3.4. In order to meet the required Production date, the following deadlines (“Deadlines”) shall apply:

Action

Deadline

Final Production Design accepted by You.

Two (2) weeks before Production commencement.

Artwork to be supplied by You to Us.

One (1) week before Production commencement.

If You fail to meet the Deadlines set out above, We cannot be held liable for any failure to meet the Production date. If, as a result of Your failure to meet the Deadline, You require Us to take special action, You shall indemnify Us on demand for all additional costs or losses incurred by Us as a result of Your delay.

3.5. You must either accept or request changes to the Production Design within seven (7) days of Us delivering it to You. If You do not accept the Production Design within seven (7) days, or within a revised timeframe set by Us after changes have been made, then We shall consider the entire Proposal as rejected and You must request a new Proposal from Us if You wish to continue working with Us on Your envisaged Production.

3.6. If a Proposal is rejected under clause 3.5, the We shall be entitled to invoice You for Our time spent on the rejected Production Design (charged at Our then current day rates) within seven (7) days, payable in accordance with clause 10.

3.7. Once a Production Design has been accepted by You and You have confirmed You wish us to deliver Services in conformance with such, the accepted Production Design shall become the Final Production Design against which We will deliver the Services and provide the Supplied Equipment.

3.8. Should you request any changes to the Final Production Design at any point prior to the Production commencement date, such requests shall be considered a Change Request and managed in accordance with clause 7.

4. Our Services

4.1. We will provide the Services to You, subject to the terms of the relevant Contract and in accordance with the Proposal and, if applicable, the Statement of Work.

4.2. We shall provide You with the Services for each Production with reasonable skill and care in accordance with generally recognised industry practice and in accordance with Applicable Law.

4.3. We have the right to make changes to the Services which are necessary to comply with any applicable law or safety requirement or which do not materially affect the nature or quality of the Services and We shall notify You in such event.

4.4. We shall be entitled to visit and assess the facilities, lay-out and suitability of the Venue in the context of the proposed Services and Supplied Equipment to be provided.

4.5. We will use Our reasonable endeavours to provide the Services within the time period(s) and at the location(s) specified in the Proposal or such other time period(s) or location(s) as may be agreed in writing between the parties but meeting such timescales shall not be of the essence of the relevant Contract.

4.6. In the event that We are unable to deliver the Services on the scheduled date due to Your failure to meet Your obligations, the duration of the Services shall be extended by the amount of such delay and the Charges may be increased to take into account such delay.

5. Supplied Equipment & Accessories

5.1. We will provide the Supplied Equipment and Supplied Accessories to You as part of the Services. We reserve the right to substitute any of the Supplied Equipment and Supplied Accessories for similar equipment of equivalent quality at Our option, provided such substitution has no detrimental impact on the quality of the Services.

5.2. We also have the right to substitute Supplied Equipment and Supplied Accessories if, following assessment of the Venue, We believe the intended Supplied Equipment and Supplied Accessories may not be suitable for the Production.

5.3. We shall be responsible for the set up and operation of the Supplied Equipment and Supplied Accessories and You shall not do anything which will impact upon or impair our use and operation of the Supplied Equipment and Supplied Accessories.

5.4. The Supplied Equipment shall at all times remain Our property or the property of Our Hirer and You shall have no right, title, interest in or to the Supplied Equipment (save to the right of use pursuant to these Terms).

5.5. The Supplied Accessories shall at all times remain Your property and We shall have no right, title, interest in or to the Supplied Accessories.

5.6. Following delivery of the Supplied Equipment and Supplied Accessories to the Venue, You shall provide or procure the provision of a secure area at the Venue where the Supplied Equipment and Supplied Accessories may be stored prior to set up.

5.7. You shall be liable for any loss, theft or damage to the Supplied Equipment and Supplied Accessories which occurs following delivery of the Supplied Equipment and Supplied Accessories to the Venue, unless due to the direct act or omission of any of Our employees, agents, consultants or subcontractors.

5.8. Your liability under clause 5.7 above shall include the obligation to pay Us an amount equal to the cost to Us or repair or replacement (as We may reasonably decide) of the affected Supplied Equipment, together with such costs and losses as We may incur as a consequence of such loss, theft or damage.

5.9. You shall make Us promptly aware of any issue with, or concern You may have in respect of, the Supplied Equipment and the Supplied Accessories.

5.10. At the conclusion of a Production, You shall be responsible for the removal, transport and subsequent storage of the Supplied Accessories. If You require Us to remove, transport or store any Supplied Accessories, You shall ask Us to provide a quotation for associated costs, in writing, no later than at the conclusion of the Production.

5.11. We shall dispose of all Supplied Accessories after the conclusion of a Production, unless agreed otherwise, in writing. If We and You agree that We shall store the Supplied Accessories on a temporary basis after the conclusion of the Production, You shall inform us within seven (7) days of where you would like the Supplied Accessories forwarded to, or otherwise dealt with.

6. Your Co-operation

6.1. You shall provide co-operation and support to Us in Our efforts to provide the Services. This includes providing Us with all information We might reasonably request in order to provide the Services to You and responding to Our communications within a reasonable timescale.

6.2. You shall:

6.2.1. Ensure that any information You have provided Us concerning the set-up at the Venue is complete and accurate; and

6.2.2. Ensure that We have the necessary access to the Venue and other facilities as reasonably required by Us to provide the Services and to deliver the Supplied Equipment (including ensuring that drinking water is available to Our staff free of charge); and

6.2.3. Notify Us as soon as practical of any changes to the set-up at the Venue which may affect Our provision of Services; and

6.2.4. Obtain and maintain all necessary licenses, permissions and consents which may be required for the Services before the date on which the Services are to start.

6.3. You agree that if We are unable to perform Our obligations under each Contract due to Your failure to meet Your agreed obligations then We shall not be considered in default under the relevant Contract as a result.

6.4. We shall not be liable for any costs or losses sustained or incurred by You directly or indirectly from Our failure or delay to perform any of Our obligations as a result of Your failure to perform Your obligations as set out in this clause 6.

7. Change Control

7.1. Any additional Services required or requested by You which are:

7.1.1. not set out in the Proposal;

7.1.2. not set out in the Final Production Design; or

7.1.3. which are necessitated as a result of the set-up at the Venue being different from that notified to Us or as discovered following Our inspection of the Venue,

shall be notified to You along with Our then current daily rates and an estimate of the additional Fees required to satisfy the provision of Your requirement/request for You to agree to or decline.

7.2. If You decline to incur liability for the additional Fees in accordance with 7.1, We shall not be responsible or liable for Our failure to deliver any part of the Production affected by the lack of required additional Services.

7.3. For the avoidance of doubt these Terms shall apply to any additional Services.

8. Cancellation and Postponement

8.1. You shall provide Us with immediate notice of any postponement or cancellation of a Production and We shall take all reasonable steps to comply with any such postponement or cancellation request, subject always to Our contractual obligations to third parties. You shall reimburse Us for all damages and/or losses, and for all costs or expenses incurred or to which We are committed and which are not recoverable, which in any event shall not be less than a proportion of the total Fees identified in the Proposal or otherwise agreed in writing between Both of Us and calculated according to the length of notice of postponement or cancellation before the date of the event agreed by Both of Us in the Proposal (“the Event Date”) as follows:

8.1.1. over 61 days before Event Date: 15% of Fees

8.1.2. 31 – 60 days before Event Date: 30% of Fees

8.1.3. 8 – 30 days before Event Date: 60% of Fees

8.1.4. up to 7 days before Event Date: 100% of Fees

9. Intellectual Property Rights and Licensing

9.1. Subject to clause 9.4, where any Deliverables of the Services are designed, created or otherwise developed by Us for You pursuant to a Contract, the Intellectual Property Rights in, arising out of or in connection with such products shall be owned by Us.

9.2. Subject to 9.3, We hereby grant You a royalty-free, non-transferable, non-exclusive licence to use the Deliverables only for the purposes of and during the Production.

9.3. We hereby grant You a royalty-free, non-transferable, non-exclusive, perpetual licence for us of any Deliverables created specifically for Your use after the Production (as outlined in the Proposal or by written agreement with Us).

9.4. Any of Your Materials provided by You to Us to enable Us to deliver the Services remain Your exclusive property at all times.

9.5. You shall be responsible for ensuring that any of Your Material provided to Us does not infringe any third party intellectual property or other rights. You will advise Us promptly if any material prepared by Us is inaccurate, misleading or false or likely to give rise to any third party intellectual property claim.

10. Fees and Payment

10.1. You agree to reimburse Us for expenses (including travel, hotel and other out-of-pocket expenses) and any third-party costs reasonably incurred by Us in connection with the Services.

10.2. The amounts payable under each Contract are exclusive of VAT which shall be payable in addition where applicable. You acknowledge that VAT rates may vary depending on the relevant jurisdiction(s) in which the Services (including third party goods or services) are supplied.

10.3. All Fees shall be invoiced by Us in accordance with the payment schedule specified in the applicable Contract.

10.4. All invoices shall be due and payable by You within thirty (30) days of the date of such invoice (the "Due Date"). Without limiting any of Our other rights or remedies, if You fail to make any payment due to Us under the Contract by the due date for payment, We may charge You interest and such other sums as may be payable in respect of the overdue amount pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

10.5. In addition to clause 10.4, where the Fees are due to be paid in advance of Our performance under a Contract (as dictated by the payment schedule), We shall not commence performance of any element of a Contract until payment We have received Your payment.

10.6. For the avoidance of doubt, We shall not be liable for any costs or damages incurred by You as a result of Your delay, and where Your delayed payment causes an increase in Our costs, We shall invoice You for the additional costs before the conclusion of the Production.

11. Confidentiality

11.1. You or We (the Receiving Party) 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 the Receiving Party by the other (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 11 shall survive termination of a Contract.

12. Data Protection

12.1. For the purposes of a Contract, Both of Us may receive Personal Data. Where You or We receive Personal Data as Data Controllers You and We agree to comply with Data Protection Legislation.

12.2. Throughout the commercial relationship between Both of Us, You and We will be processing the Personal Data of the other’s employees as Data Controller to facilitate contact and co-operation between Both of Us and to achieve our respective business interests.

12.3. Where You or We receive Personal Data as a Data Processor, that party shall:

12.3.1. act solely on the instructions of the party sending the Personal Data in relation to the processing of that Personal Data. In the event that a legal requirement prevents the Data Processor from complying with such instructions the Data Processor shall, unless such legal requirement prohibits it from doing so, inform the other party of the relevant legal requirement before carrying out the relevant processing activities;

12.3.2. at all times, ensure that the necessary technical and organisational measures are in place to prevent unauthorised and unlawful processing or disclosure of such Personal Data and such measures shall include taking reasonable steps to ensure the reliability of any of its staff who may have access to Personal Data and ensuring that such staff are subject to appropriate confidentiality undertakings. The Data Processor shall, save where prohibited by law and as soon as reasonably practical, notify the other party of any legal obligation which requires the Data Processor to disclose the Personal Data to a third party;

12.3.3. not transfer the Personal Data outside of the European Economic Area (as such term is commonly understood) or to any third party without the other party’s written consent;

12.3.4. send to the other party any communications received from individuals in relation to their Personal Data as soon as reasonably practicable. The Data Processor shall provide reasonable co-operation to the other party in relation to any individuals exercising their rights under the Data Protection Legislation;

12.3.5. give the other party reasonable assistance in relation to its compliance with Data Protection Legislation;

12.3.6. take reasonable steps to ensure the confidentiality, integrity, availability and resilience of processing systems and services associated with the processing of Personal Data;

12.3.7. co-operate with and provide such information and access to any facilities, premises or equipment from or on which Personal Data is, has been, or is to be processed pursuant to a Contract (including any such facilities, premises or equipment used by staff and/or sub-contractors) as the other party may reasonably require to enable it to monitor compliance by the Data Processor with the obligations in a Contract;

12.3.8. notify the other party of any Personal Data Breach and assist the other party with any investigation into and remediation of a Personal Data Breach. The Data Processor shall also provide the other party with reasonable assistance with any notifications made to relevant authorities and/or individuals in relation to a Personal Data Breach;

12.3.9. not subcontract any of its obligations under a Agreement regarding the processing of Personal Data to a third party (a “Sub-Processor”) without the prior written consent of the other party. The Data Processor shall be liable for the acts and omissions of the Sub-Processor as if they were the acts or omissions of the Data Processor itself and the Data Processor shall ensure that there is a written contract executed between the Data Processor and the Sub-Processor that contains equivalent protections for the Personal Data as are set out in this Agreement;

12.3.10. when instructed by the other party, immediately cease processing the Personal Data and immediately supply any Personal Data to the other party or delete the Personal Data in accordance with the other party’s instructions;

12.3.11. submit to audits and inspections carried out directly upon it by a supervisory authority or the Data Controller, and co-operate in any audits and inspections carried out upon the Data Controller; and

12.3.12. inform the Data Controller immediately if any requests made of it would involve infringing Data Protection Legislation.

12.4. The Data Processor shall comply with Data Controller’s Information Retention Policy (as amended from time to time) and will notify the Data Controller of any law in the jurisdiction(s) in which the Data Processor operates that would prevent the Data Processor from complying with the Data Controller’s Information Retention Policy.

12.5. The Data Processor shall maintain and keep up to date a list detailing the location of all Data Controller data (including Personal Data) together with details of any third party sub-contractors or third parties with whom the Data Processor has shared any Data Controller data.

12.6. Nothing in this agreement relieves a Data Processor of its own direct obligations under Data Protection Legislation.

12.7. A Data Processor shall be liable to a Data Controller for any losses incurred as a result of the Data Processor’s breach of any of these terms, up to a maximum of 200% of the aggregate value of the Contracts existing between Both of Us within a twelve (12) month period.

12.8. Clause 12.7 does not in any way purport to exclude or limit a Data Controller’s liability arising under Data Protection Legislation.

12.9. By agreeing to these Terms, You give Us, in circumstances where We are Data Processor, permission to use transfer Personal Data to the third parties detailed in Our Privacy Notice.

13. Limitation of Liability

13.1. These Terms set out Our entire liability (including any liability for the acts or omissions of Our employees, agents and sub-contractors) to You in respect of:

13.1.1. any breach of these Terms; and

13.1.2. any representation, statement or tortious act or omission including negligence arising under or in connection with the applicable Contract.

13.2. Nothing in these Terms excludes or limits Our liability for death or personal injury caused by Our negligence, or for fraud or fraudulent misrepresentation.

13.3. Subject to clause 13.1 and 13.2:

13.3.1. Our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising in connection with these Terms shall be limited to 125% of the aggregate charges paid by You for the Production under a Contract; and

13.3.2. in no circumstances whatsoever shall We be liable to You in contract, tort (including negligence and breach of statutory duty) or otherwise for any loss (whether direct or indirect) of profits, goodwill or business opportunity or for any indirect, special or consequential loss (whether or not reasonably foreseeable and even if We had been advised of the possibility of You incurring the same).

13.4. Both parties accept that the allocation of liabilities and risk between the parties as effected by these Terms and in particular by clauses 12.7 and 13.3 has been evaluated in accordance with the entire framework of these Terms, taking into account such matters as the nature of the Services, price and the possible availability and cost to each party of putting in place such preventative, protective, curative, insurance and other measures as would be sufficient to minimise the impact and amount of any loss suffered should such risk materialise.

13.5. Except as expressly provided in these Terms, We give no warranties or representations of any kind. All warranties, conditions and other terms implied by statute or common law (except for the conditions implied by s12 Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from Our Contracts with You.

14. Force Majeure

14.1. Neither party shall be liable to the other in any way whatsoever for failure, interruption, delay or any other matters of a similar nature whatsoever arising out of circumstances beyond its reasonable control (including war, industrial disputes, fire, bad weather, failure of equipment or transmission (or other supply), and the act or order of any government department, council or other constituted body). If any such event of force majeure prevails for a continuous period of one (1) month, either party may terminate this Contract by immediate written notice to the other or delay performance of its obligations until further notice.

15. Termination

15.1. Unless otherwise agreed in writing between Us and You, each Contract will terminate immediately upon completion of the Services or upon cancellation by You or Us in accordance with clause 8.

15.2. You or We may terminate a Contract immediately on notice if:

15.2.1. the other party is in material breach of a material provision of this Contract and, in the case of (i) a breach under clause 6, fails to remedy such breach within twenty-four (24) hours of the breach or (ii) any other breach capable of remedy, fails to remedy such breach within ten (10) days of receipt of written notice giving particulars of the breach and requesting it to be remedied; or

15.2.2. if any encumbrancer takes possession of or a receiver is appointed over any of the property or assets of the other party or if the other party makes any voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation (except for the purposes of amalgamation or reconstruction not involving insolvency and in such manner that the entity resulting therefrom effectively agrees to be bound by or assumes the obligations imposed on that other party under a Contract) or anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other party or if the other party ceases or threatens to cease to carry on business.

16. Sub-Contracting

16.1. Subject to clause 12.3.9, You permit Us to purchase goods or services from third parties as may be appropriate and/or necessary in connection with the provision of the Services.

16.2. We shall exercise reasonable skill in negotiating terms with suppliers of goods or services and, in so far as such suppliers impose exclusions or limitations of their liability to Us in their contracts, Our liability to You in respect of any supplier's breach of contract or other duty shall be no greater than that accepted by the supplier in its contract with Us.

17. Principal not Agent

17.1. In all contracts with third parties We shall act as principal and not agent for You.

18. General

18.1. Subject to clause 11, Both of Us shall be entitled to publicise our involvement with the other on our respective websites or in case-studies or by similar means of demonstrating a portfolio of work, on the written consent of the other, not to be unreasonably withheld or delayed.

18.2. Any notice to be given under a Contract by either party shall be in writing and may be delivered to the other by sending it by courier, pre-paid first-class post, fax or email to the most recent address, fax number or email address notified by each party to the other. Notices will be deemed to have been received in the case of courier delivery, at the date and time shown on a signed delivery receipt, in the case of pre-paid first-class post 48 hours from the date of posting, and in the case of fax or email, at the time of its transmission if sent on a Monday to Friday other than a public holiday in England, or on any other agreed working day.

18.3. If any provision of these Terms is or becomes invalid, illegal, void or unenforceable in whole or in part, such term or part shall to that extent be deemed not to form part of a Contract but the validity or enforceability of the remaining provisions and/or the remainder of the provision in question shall be unaffected.

18.4. A party who is not a party to a Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of a Contract but this does not affect any right or remedy of a third party which exists or is available outside of this Act.

18.5. All rights granted to You or Us shall be cumulative and not exhaustive of any rights and remedies provided by law. The failure of either party to enforce (or delay in enforcing) at any time for any period any term of a Contract shall not be a waiver of any of its rights under the Contract. No exercise, partial exercise or waiver by either party of any right under a Contract shall restrict or prejudice any further or other exercise thereof or the exercise of any other right granted by this contract or otherwise available to it.

18.6. In these Terms, "include" means "including without limitation" and similar expressions shall be construed accordingly.

18.7. No Contract or any part of it may be assigned by You without Our prior written consent. We may assign this Agreement or any part of it to any person, firm or company.

18.8. These Terms and any corresponding Contract shall be governed by and construed in accordance with the laws of England and You and We irrevocably submit to the exclusive jurisdiction of the English courts.