TERMS AND CONDITIONS
These Terms and Conditions apply to all services provided or to be provided to Eye Candy Promotions LLP ("the Company") by the person, firm or company named on the Assignment Form ("the Promotional Member").
1. Definitions
1.1 Unless the context provides otherwise the following terms shall have the following meanings:-
"Assignment" means the assignment as detailed in the Assignment Form;
"Assignment Form" means the assignment or booking form in which are set out the details of the Assignment;
"Client" the Company's client referred to in the Assignment Form;
"the Fee" the fee payable to the Promotional Member in respect of the Assignment such fee being set out in the Assignment Form or notified to the Promotional Member on a per Assignment basis;
"Force Majeure" means, in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, any strike, lockout or other form of industrial action);
"Intellectual Property Rights" means patents, trade marks, service marks, registered designs, applications for any of those rights, trade and business names, unregistered trade marks and service marks, copyrights, know-how, rights in designs and inventions, and any rights of the same or similar effect or nature of the foregoing.
1.2 Words denoting a singular number only shall include the plural and vice versa; words denoting any gender include all genders; words denoting persons include firms and corporations.
1.3 The headings in these Terms and Conditions are inserted for convenience only and references to clauses, sub-clauses and paragraphs shall (save where otherwise expressly stated) be construed as references to clauses, sub-clauses and paragraphs of these Terms and Conditions.
1.4 Reference to any statute or statutory provision includes a reference to the statute or statutory provision as from time to time amended, extended or re-enacted.
2. Nature of Agreement and the Assignment
2.1 All Assignments placed with the Promotional Member and contracts are on the basis of these Terms and Conditions.
2.2 Unless otherwise agreed the Company is under no obligation to offer an Assignment to the Promotional Member and he does not have exclusive rights to undertake and complete an Assignment. The Company shall not be obliged to accept the Promotional Member's offer to undertake an Assignment and the Company may at any time appoint any other person to undertake an Assignment whether jointly with the Promotional Member or in place of the Promotional Member.
2.3 Assignments commence and conclude at the places and times set out in the Assignment Form.
3. Obligations and rights of the Promotional Member
3.1 Subject to these Terms and Conditions the Promotional Member shall be entitled to the Fee in respect of Assignments undertaken and completed by the Promotional Member.
3.2 The Promotional Member shall at all times:-
(i) faithfully and diligently with all due skill and care perform his duties in accordance with these Terms and Conditions and exercise such powers consistent with them which are from time to time necessary in connection with any Assignments;
(ii) co-operate with and obey all lawful and reasonable directions of, and comply with all rules and policies of, the Company and the Client;
(iii) be of a smart appearance, conduct himself courteously and be punctual for Assignments;
(iv) refer all enquiries and requests for further services from the Client to the Company, and keep the Company informed of any complaints of the Client relating to any Assignments;
(v) comply with all statutory and legal requirements in force from time to time in the United Kingdom in relation to Assignments;
(vi) take care of and maintain in good condition any items, equipment, samples, cameras, cars, clothing or costumes together with any other equipment that may be provided by the Company or the Client for any Assignments.
3.3 The Promotional Member shall not:-
(i) take or collect from the Client any fees payable to the Company;
(ii) refer to or discuss any terms of the Promotional Member's engagement for any Assignment including the Fee, or in any way vary the terms of an Assignment or the fees payable by the Client;
(iii) enter into any binding agreement on behalf of the Company with the Client or any other party or otherwise pledge the credit of the Company;
(iv) smoke or chew gum during an Assignment or otherwise act in any manner which may prejudice the reputation of the Company;
(v) act in any manner which endangers anyone with whom he is working, the public or any other person or otherwise cause harm to such persons;
(vi) assign or sub-contract any of his obligations under these Terms and Conditions.
3.4 Subject to clause 5.1, in the event the Promotional Member is unable to attend an Assignment due to illness, he shall notify the Company immediately and in any event at least 2 business days before the date of the Assignment with details of the illness.
3.5 In the event of any accident or injury involving the Promotional Member or caused to the Client or any other party by the Promotional Member, the Promotional Member shall immediately notify the Company.
3.6 Upon completion of the Assignment all items, equipment, samples, cameras, cars, clothing or costumes together with any other equipment that may be provided by the Company or the Client for the Assignment must be returned immediately to the Client or the Company as instructed.
3.7 In the event the Promotional Member attends an interview or casting for further assignments with the Client, the Promotional Member shall inform the Client that such assignments must be booked through the Company and the Promotional Member will provide full details to the Company forthwith.
3.8 The Promotional Member shall maintain at his own cost a comprehensive or specific policy of insurance with a reputable insurance company to cover his liability in respect of public and personal liability and any act or default for which the Promotional Member may become liable to the Company under these Terms and Conditions and upon the reasonable request of the Company, the Promotional Member shall supply the Company with copies of current certificates of insurance.
3.9 The Promotional Member undertakes to the Company to pay all and any tax and national insurance contributions which are due from the Promotional Member whether in the United Kingdom or elsewhere in relation to the payments to be made to the Promotional Member by the Company pursuant to these Terms and Conditions and further agrees to indemnify the Company in respect of all and any tax and national insurance contributions which may be found due from the Company on any payments made to the Promotional Member under these Terms and Conditions together with any interest, penalties or gross-up thereon.
4. Warranty
4.1 The Promotional Member warrants and represents to the Company that he is an independent contractor and nothing in the agreement or these Terms and Conditions shall render the Promotional Member an employee, agent or partner of the Company and the Promotional Member will not hold himself out as such.
4.2 The Promotional Member warrants that by entering into the Contract he is not in breach of any express or implied term of any contractual or other obligation to any third party.
4.3 You warrant that you are entitled to work in the UK and will inform the Company immediately if you cease to be so entitled.
5. Obligations and rights of the Company
5.1 If the Promotional Member is unable to or fails to undertake and complete an Assignment or otherwise withdraws from an Assignment prior to its completion, the Promotional Member shall not be entitled to the Fee or any other sums and the Company shall be entitled to contract with another person to undertake and complete the Assignment and the Promotional Member shall indemnify and keep indemnified the Company against all and any costs incurred in excess of the Fee as a result PROVIDED always that in the event of illness this indemnity shall not apply if the Promotional Member has complied with clause 3.4.
5.2 If an Assignment is terminated by the Client for any reason whatsoever then, provided the client has made the cancellation payment, the Promotional Member shall be entitled to:
(i) 50% of the Fee if less than 24 hours' notice is given; and
(ii) no fee if more than 24 hours’ notice is given.
5.3 If the Client is unhappy or otherwise dissatisfied with the Promotional Member's services and refuses payment of any fees to the Company for its services then the Company shall not be liable to the Promotional Member for the Fee or any other sums unless the Company has first obtained payment from the Client.
5.4 The Company is entitled to procure, maintain and use the Promotional Member's personal data including sensitive data subject to the Company procuring, maintaining and using such personal data in accordance with the Data Protection Act 1998.
6. Financial provisions
6.1 All payments by the Company include a proportion of holiday pay in respect of paid annual leave allowance. Each payment paid contains an element of payment reflecting the Promotional Member’s entitlement to statutory holidays on a pro rate basis.
6.2 Subject to clause 6.3, the Fee shall be paid by the Company on or before the last working day of the second month following the month in which the Assignment was completed by way of credit transfer to the Promotional Member’s bank account the details of which shall be provided to the Company by the Promotional Member from time to time in writing.
6.3 The Company shall notify the Promotional Member within 14 days of receipt of an invoice (where provided) if the Company considers such invoice incorrect or invalid for any reason and the reasons for withholding payment failing which the Company will raise no objection to any such invoice and will make full payment in accordance with clause 6.2.
6.4 On receipt of any notice under clause 6.3 the Promotional Member shall issue a credit note in respect of the incorrect or invalid invoice and issue a correct invoice to the Company within 14 days after and the correct invoice will be paid in accordance with clause 6.2 above or as soon as is reasonably practicable.
6.5 All sums payable shall be exclusive of VAT where applicable.
6.6 If the Promotional Member has been overpaid any Fees or other sums the Promotional Member shall repay the Fee and any other sums that have been overpaid.
6.7 All Fees and any other sums to be repaid shall be repaid by Promotional Member within 14 days of receipt of a demand from Company, or deducted from Fees and/or other sums which are otherwise payable to the Promotional Member.
7. Intellectual Property Rights
7.1 The ownership of and sole right to the Intellectual Property Rights in any products or services or Confidential Information (as defined in clause 8) made, originated or developed during the course of or otherwise related to an Assignment or arising out of the provision of services by the Promotional Member under these Terms and Conditions shall vest in the Company. The Promotional Member hereby assigns and agrees to assign all his interest therein to the Company or its nominee and the Company shall be at liberty to effect and be responsible for securing such protection of the Intellectual Property Rights whether by registration or otherwise as it sees fit.
7.2 The Promotional Member will at the Company's request do all things and sign all documents or instruments reasonably necessary to enable the Company to obtain its rights in any Intellectual Property Rights arising out of the provision of the services under these Terms and Conditions.
8. Confidentiality
8.1 In this clause 8, “Confidential Information” means all confidential information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) including, without limitation, information relating to the Disclosing Party’s products, clients, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunities and business affairs.
8.2 The Receiving Party shall not:
(i) use Confidential Information for a purpose other than the performance of his obligations under these Terms and Conditions; and
(ii) disclose Confidential Information to a person except with the prior written consent of the Disclosing Party.
9. Liability and Indemnity
9.1 The Company shall not be liable to the Promotional Member, regardless of the form of action, whether in contract, tort, strict liability or otherwise for any loss of profit or business, or any special indirect or consequential damage of any nature whatsoever unless and to the extent that such liability results in death or personal injury as a result of the negligence of the Company.
9.2 The Promotional Member shall indemnify and keep indemnified the Company against any and all loss, damage, fees, costs, expenses or other liability whatever including in relation to death or personal injury or damage to property arising out of or in the course of or as a result of the Promotional Member's performance of his duties which the Company suffers or incurs by reason of the Promotional Member's breach of any contract, breach of statutory duty and/or any negligent act or omissions or other default.
10. Termination
10.1 The Company may without liability terminate the agreement or an Assignment with immediate effect by notice to the Promotional Member on or at any time after the occurrence of any event specified in clause 10.2 in relation to the Promotional Member.
10.2 The events are:-
(i) the Promotional Member being in breach of any of these Terms and Conditions;
(ii) the Promotional Member being in breach of any statutory regulations and/or suffers any criminal convictions;
(iii) the Promotional Member has a bankruptcy or winding up order made against him or it or a petition for such an order presented;
(iv) the making of an administration order in relation to the Promotional Member or the appointment of a receiver over, or an encumbrancer taking possession of or selling, any asset of the Promotional Member;
(v) the Promotional Member making an arrangement or composition with his or its creditors generally or making an application to a court of competent jurisdiction for protection from his or its creditors generally;
(vi) the Promotional Member suffering any insolvency proceedings in any other jurisdiction equivalent to those set out in clauses 10.2(iii) to 10.2(v).
11. Termination Consequences
11.1 In the event of the Contract being determined whether by effluxion of time, notice, breach or otherwise:
(i) the Promotional Member shall return to the Company all items, equipment, samples, cameras, cars, clothing or costumes together with any other equipment that may be provided by the Company or the Client for any Assignments belonging to the Company or the Client; and
(ii) the Promotional Member shall return to the Company all Confidential Information disclosed to the Promotional Member including all copies of such Confidential Information and all other property belonging to the Company and the Promotional Member shall certify that it has not kept any copies.
12. Restrictions
12.1 The Promotional Member shall not during the period of an Assignment or for a period of 12 months immediately following the completion of an Assignment for whatever reason, in connection with the carrying on of any business similar to or in competition with the business of the Company on the Promotional Member’s own behalf or on behalf of any person, firm, or company directly or indirectly:-
(i) seek to procure orders from or seek to do business with the Client; or
(ii) endeavour to entice away from the Company any employee or other member who has at any time during the 12 months immediately preceding such completion been employed or engaged by the Company.
12.2 The Promotional Member agrees that each of the restrictions in these Terms and Conditions are reasonable and are necessary for the protection of the Company’s business, and each provision is independent and severable. In the event that any of the restrictions shall be held void but would be valid if part of the wording thereof were deleted such restriction shall apply with such deletion as may be necessary to make it valid and effective.
13. General
13.1 Neither party shall be in breach of the agreement or these Terms and Conditions, or otherwise liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to any Force Majeure.
13.2 The Promotional Member shall not be entitled to assign any of its rights or obligations hereunder without the prior written consent of the Company.
13.3 The agreement and these Terms and Conditions contain the whole agreement between the parties and supersedes all previous agreements.
13.4 No failure or delay by the Company in exercising any right, power or privilege under the agreement or these Terms and Conditions shall operate as a waiver thereof or prejudice any other or further exercise by the Company of any of its rights or remedies hereunder.
13.5 The rights and remedies hereunder are cumulative and not exclusive of any right or remedies provided by law.