These Terms and Conditions apply to the provision of the services detailed in our quotation (Services) by KiK Creative (we or us or Service Provider) to the person buying the services (you or Customer).
You are deemed to have accepted these Terms and Conditions when you accept our quotation or from the date of any performance of the Services (whichever happens earlier) and these Terms and Conditions and our quotation (the Contract) are the entire agreement between us.
You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Conditions apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
A “business day” means any day other than a Saturday, Sunday or bank holiday in England and Wales.
The headings in these Terms and Conditions are for convenience only and do not affect their interpretation.
Words imparting the singular number shall include the plural and vice-versa.
We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the quotation, including any specification in all material respects. We can make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and we will notify you if this is necessary.
We will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out in the quotation; however, time shall not be of the essence in the performance of our obligations.
All of these Terms and Conditions apply to the supply of any goods as well as Services unless we specify otherwise.
You must obtain any permissions, consents, licences or otherwise that we need and must give us with access to any and all relevant information, materials, properties and any other matters which we need to provide the Services.
If you do not comply with clause 10, we can terminate the Services.
We are not liable for any delay or failure to provide the Services if this is caused by your failure to comply with the provisions of this section (Your obligations).
The fees (Fees) for the Services are set out in the quotation and are on a time and materials basis.
In addition to the Fees, we can recover from you a) reasonable incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, b) the cost of services provided by third parties and required by us for the performance of the Services, and c) the cost of any materials required for the provision of the Services.
You must pay us for any additional services provided by us that are not specified in the quotation in accordance with our then current, applicable daily rate in effect at the time of performance or such other rate as may be agreed between us. The provisions of clause 14 also apply to these additional services.
The Fees are exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.
You must pay a deposit (“Deposit”) as detailed in the quotation within 7 days of acceptance.
If you do not pay the Deposit to us according to the clause above, we can either withhold provision of the Services until the Deposit is received or can terminate under the clause below (Termination).
The Deposit is non-refundable unless we fail to provide the Services and are at fault for such failure (where the failure is not our fault, no refund will be made).
We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the quotation, including any specification in all material respects. We can make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and we will notify you if this is necessary.
We will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out in the quotation; however, time shall not be of the essence in the performance of our obligations.
All of these Terms and Conditions apply to the supply of any goods as well as Services unless we specify otherwise.
We shall be entitled to terminate this Agreement upon the Client’s material breach (including without limitation non-payment of any sum due) unless the Client remedies such breach within 7 days of its occurrence.
We will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency beyond our reasonable control, including without limitation Internet outages, communications outages, fire, flood, war or act of God.
In the event that the Client wishes to cancel or postpone our services in accordance with this Agreement (save in the event of a material breach by KiK Creative of a fundamental term of this Agreement) at any time, we shall be entitled to recover the following proportions of the Fees:
Where such cancellation or postponement is communicated to us more than 10 working days in advance of the Shoot Date, we shall not be entitled to any proportion of the Fees;
Where such cancellation or postponement is communicated to us within the period between 10 working days and 48 hours in advance of the Shoot Date, we shall, at our option, be entitled to recover 50% of the Fees;
Where such cancellation or postponement is communicated to us within the period of 48 hours before the Shoot Date, or if any such cancellation is not communicated to us at all, we shall, at our option, be entitled to recover 100% of the Fees;
During the course of this Agreement and for a period of 12 months afterwards, the Client shall not solicit our staff, or any person employed or engaged by us in relation to its provision of the Services in the 6 months prior to expiry or termination of this Agreement, or entice them to transfer their employment or services.
We will invoice you for payment of the Fees either:
when we have completed the Services; or
on the invoice dates set out in the quotation.
You must pay the Fees due within 1 day of the date of our invoice or otherwise in accordance with any credit terms agreed between us.
Time for payment shall be of the essence of the Contract.
Without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out above, we will charge you interest at the rate of 4% per annum above the base lending rate of the Bank of England from time to time on the amount outstanding until payment is received in full.
All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.
If you do not pay within the period set out above, we can suspend any further provision of the Services and cancel any future services which have been ordered by, or otherwise arranged with, you.
Receipts for payment will be issued by us only at your request.
All payments must be made in British Pounds unless otherwise agreed in writing between us.
We can at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under these Terms and Conditions and can subcontract or delegate in any manner any or all of our obligations to any third party.
You must not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions.
We can terminate the provision of the Services immediately if you: commit a material breach of your obligations under these Terms and Conditions; or fail to make pay any amount due under the Contract on the due date for payment; or are or become or, in our reasonable opinion, are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor; or enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency.
The licence to use comes into effect from the date of payment of the relevant invoice(s).
No use may be made of the photographs before payment in full of the relevant invoice(s) without the photographer’s express permission.
Any permission which may be given for prior use will automatically be revoked if full payment is not made by the due date or if the agency is put into receivership or liquidation.
The licence only applies to the advertiser and product as stated on the front of the form and its benefit shall not be assigned to any third party without the photographer’s permission.
Accordingly, even where any form of ‘all media’ licence is granted, the photographer’s permission must be obtained before any use of the photographs for other purposes e.g. Use in relation to another product or sub-licensing through a photo library.
Permission to use the photographs for purposes outside the terms of the licence will normally be granted upon payment of a further fee, which must be mutually agreed (and paid in full) before such further use.
Unless otherwise agreed in writing, all further licences in respect of the photographs will be subject to these terms and conditions.
Liability and indemnity
Our liability under these Terms and Conditions, and in breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this section.
The total amount of our liability is limited to the total amount of Fees payable by you under the Contract.
We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Services or the performance of any of our other obligations under these Terms and Conditions or the quotation for:
any indirect, special or consequential loss, damage, costs, or expenses
or;
any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third party claims;
or
any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; or
any losses caused directly or indirectly by any failure or your breach in relation to your obligations;
or
any losses arising directly or indirectly from the choice of Services and how they will meet your requirements or your use of the Services or any goods supplied in connection with the Services.
You must indemnify us against all damages, costs, claims and expenses suffered by us arising from any loss or damage to any equipment (including that belonging to third parties) caused by you or your agents or employees.
Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability.
When supplying the Services to the Customer, the Service Provider may gain access to and/or acquire the ability to transfer, store or process personal data of employees of the Customer.
The parties agree that where such processing of personal data takes place, the Customer shall be the ‘data controller’ and the Service Provider shall be the ‘data processor’ as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time.
For the avoidance of doubt, ‘Personal Data’, ‘Processing’, ‘Data Controller’, ‘Data Processor’ and ‘Data Subject’ shall have the same meaning as in the GDPR.
The Service Provider shall only Process Personal Data to the extent reasonably required to enable it to supply the Services as mentioned in these terms and conditions or as requested by and agreed with the Customer, shall not retain any Personal Data longer than necessary for the Processing and refrain from Processing any Personal Data for its own or for any third party’s purposes.
The Service Provider shall not disclose Personal Data to any third parties other than employees, directors, agents, sub-contractors or advisors on a strict ‘need-to-know’ basis and only under the same (or more extensive) conditions as set out in these terms and conditions or to the extent required by applicable legislation and/or regulations.
The Service Provider shall implement and maintain technical and organisational security measures as are required to protect Personal Data Processed by the Service Provider on behalf of the Customer.
Further information about the Service Provider’s approach to data protection are specified in its Data Protection Policy, which can be found on our website . For any enquiries or complaints regarding data privacy, you can email: Admin@kikcreative.co.uk
Circumstances beyond a party’s control
Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question. If the delay continues for a period of 90 days, either of us may terminate or cancel the Services to be carried out under these Terms and Conditions.
All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
Notices shall be deemed to have been duly given:
when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;
on the fifth business day following mailing, if mailed by national ordinary mail;
or
on the tenth business day following mailing, if mailed by airmail.
All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party.
No delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy.
If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).
This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.
