Terms and Conditions


SMOKE & MIRRORS

Conditions of Business

1. Definitions

In these conditions, the following terms shall have the following meanings:

The ‘Company’ means Smoke and Mirrors Productions Limited of

57/59 Beak Street, London, W1F 9SJ upon whose document these

conditions are endorsed.

The ‘Customer’ means the person, firm, company or other body to

whom such document is addressed.

These ‘Conditions’ means these conditions of business; and

The ‘Contract’ means the contract to which these Conditions apply

and which incorporate these Conditions.

2. Formation of Contract

2.1. All goods, services or facilities are offered and all contracts are

entered into subject to the following conditions of business. Subject

always to condition 15.4 all other terms, conditions or warranties

whatsoever are, to the maximum extent permitted by law, excluded

from the contract or any variation thereof unless expressly accepted

by the Company in writing. No servant or agent of the Company has

the power to vary these conditions orally or to make any statement or

representation about the goods, services or facilities offered, their

fitness for any purpose or any other matter whatsoever.

2.2. These conditions shall be incorporated into any contract between the

Company and the Customer to the exclusion of any terms or

conditions stipulated or referred to by the Customer. Any dealings

with the Company following receipt by the Customer of notice of

these conditions shall automatically be deemed acceptance thereof

notwithstanding the absence of formal acknowledgement.

2.3. Unless otherwise expressly stated in writing, all quotations and

estimates supplied by the Company are invitations to treat. The

Customer’s order is an offer and shall become binding upon

acceptance by the Company.

3. Prices

3.1. All prices quoted are exclusive of VAT. The Company shall further be

entitled to make an adjustment to the quoted price in the event that:

·  Additional costs are incurred by the Company due to materials

supplied by the Customer or any third party being in the opinion of

the Company, in any way defective, in an unsuitable format (or a

different format to that which the Company is expecting to receive

the same) or of unsuitable quality for normal processing; or

·  The information supplied by the Customer or any third party in

connection with its order does not provide a full and accurate

indication of the work involved; or

·  additional costs are incurred by the Company, due to alterations by

the Customer or any third party in its requirements.

·  additional costs are incurred by the Company due to exceptional

circumstances outside the control of the Company, including

currency fluctuations and changes in third party costs.

4. Performance, Delivery or Collection

4.1. Unless otherwise agreed in writing, all times quoted for performance

or delivery or availability for collection are given in good faith but are

not guaranteed. Notwithstanding that the Company and the

Customer may have agreed that time is of the essence, the time for

performance or delivery or availability for collection shall in every

case be dependent upon prompt receipt of all necessary information,

final instructions or approvals from the Customer. Alteration by the

Customer of its requirements may result in delay in performance,

delivery or availability for collection.

4.2. Any packaging supplied by the Company, unless otherwise

expressly agreed, is intended to provide adequate protection

throughout normal conditions of transport by the means specified in

the contract or as may be otherwise agreed. If the Customer (or the

intended recipient) fails to take delivery on the agreed delivery date

or to collect on the agreed collection date or, if no specific delivery or

collection date has been agreed, when the goods are ready for

despatch, the Company shall be entitled to store the goods and to

charge the Customer the reasonable costs of so doing and to tender

its account for such charges under condition. Notwithstanding the

terms of condition 7.1 below, the Company shall be under no liability

in respect of any loss or damage following the despatch of any

goods from the Company’s premises.

4.3. If the Company and the Customer shall agree that any goods shall

be delivered electronically or via any form of telephony (“Direct

Delivery”) the following provisions shall as applicable apply:

·  the Customer acknowledges that Direct Delivery is not or may not be

a completely secure medium of communication and that an

unauthorised third party may intercept, tamper with or delete goods

delivered by Direct Delivery and that Direct Delivery may involve

reliance upon third party data carriers over which the Company has

no control; and

·  The Company shall not be responsible for and shall have no liability

to the Customer or any third party for:

any delay to any Direct Delivery or any non receipt of any goods

delivered by Direct Delivery;

any loss or damage that results from any person gaining

unauthorised access to any Direct Delivery of any goods;

use or disclosure of any data obtained by any third party as a result

of the same having gained unauthorised access to any Direct

Delivery; and

any loss or damage resulting from any malfunction of or the

introduction of any viruses, worms, logic bombs, time locks, time

bombs, Trojan horses and/or bugs to any equipment and/or software

used to effect and/or receive any Direct Delivery.

5. Terms of Payment

5.1. Subject to condition 5.2 and unless otherwise agreed by the

Company in writing all invoices rendered by the Company are

payable within 30 days of the dates thereof.

5.2. The Company expressly reserves the right at its sole option to

require payment by instalments during the performance of the

contract and/or payment of all amounts owing to the Company

immediately prior to delivery or making goods available for collection.

5.3. The Customer shall pay all amounts owing to the Company in full

and shall not exercise any rights of set off or counterclaim against

invoices submitted. Payment of all amounts shall only be made in the

currency in which they are invoiced and shall not be subject to any

deductions/charges whatsoever.

5.4. In the event of default in payment by the Customer under any

contract between the Customer and the Company, the Company

shall be entitled, without prejudice to any other right or remedy, to

suspend any further performance of or deliveries under any contract

or contracts between the Company and the Customer without

notice and to charge interest on any amount outstanding at the rate

of 4% above LIBOR from time to time (accruing from day to day

both before and after judgment), from the due date of payment to

the actual date of payment.

5.5. All prices quoted or agreed are exclusive of any applicable value

added tax, which the Customer shall be liable to pay in addition.

6. Cancellation

6.1. Any contract between the Company and the Customer may only be

cancelled or varied with the written consent of the Company and

upon the terms of these conditions. The giving of the Company’s

consent shall not in any way prejudice the Company’s right to

recover from the Customer full compensation for any loss or expense

arising from such cancellation or variation.

6.2. If notwithstanding condition 6.1 and without prejudice to any other

rights or remedies available to the Company, the Customer shall give

the Company notice of cancellation of an order which notice is

received by the Company:

·  less than 48 hours prior to, as applicable, the date for performance

or the commencement of performance or the date on which the

applicable facilities were to be utilised by or on behalf of the

Customer (the “Contract Date”), the Company shall be entitled to

charge the Customer the full contract price or, if none is stated, the

applicable amount under the Company’s rate card current at the

Contract Date; and

·  less than seven working days but more than 48 hours prior to the

Contract Date, the Company shall be entitled to charge the

Customer one half of the contract price or, if none is stated, one half

of the applicable amount under the Company’s rate card current at

the Contract Date in each case reflecting the fact that the Company

is unlikely to be able to secure an order for the facilities that had

been allocated to the processing of the Customer’s order from a third

party within the time available.

7. Liability

7.1. The Customer hereby agrees that without limiting any other provision

of these conditions:

·  to the maximum extent permitted by law the Company’s entire

liability for breach of any provisions of the contract, or any terms,

warranties or conditions implied in the contract by operation of law,

including the Company’s liability for negligence (except where such

negligence results in death or personal injury) are excluded;

·  under no circumstances shall the Company be liable for any

consequential loss whatsoever (including damages for loss of

business profits, business interruption or other indirect pecuniary

loss of any kind);

·  the Company’s entire liability for any direct loss suffered by the

Customer, as a result of the Company’s breach of the contract and

for which the Company shall notwithstanding any other provision of

the contract be liable, shall (subject to the terms of conditions 4.2,

4.3 above and 9.1 below) be limited to the amount actually paid by

the Customer in accordance with the contract;

·  the price to be paid by the Customer under the contract reflects the

limitation on the liability accepted by the Company; and

·  this condition 7.1 is reasonable and necessary in the circumstances

and that having regard to that fact, this condition does not work

harshly or unreasonably against the Customer.

7.2. The Customer shall indemnify the Company from and against:

·  all claims or proceedings taken against the Company by any third

party including any client of the Customer, the Company’s

employees, the Customer’s employees or the employees of any

contractor employed by the Customer or the Company or the

personal representatives or dependants of any such employee or

other third party in respect of personal injury or damage to property

caused by or arising out of any act or omission of the Company in

the course of carrying out the specific instructions of the Customer;

·  all claims or proceedings taken against the Company arising out of

the acts and/or omissions of the Customer, its agents or

subcontractors or any of their respective employees, whether

negligent or otherwise.

7.3. The Customer expressly agrees that it will at all times maintain and

keep effective insurance policies with reputable insurers with

sufficient cover which protect the Customer against any loss or

liability which it may incur or suffer arising out of the contract or any

act or default of the Company in the performance by the Company of

its obligations to the Customer. Such insurance shall include

insurance for any damage or loss for which the Company is not liable

pursuant to the conditions hereof, insurance which protects the

Customer against any accidental loss, damage or destruction to any

master tapes, film negative prints, sound tapes, video tapes or visual

images or sound held in any media or any other materials of any kind

supplied to the Company whilst in the possession or control of the

Company. The Company accepts no liability for any liability or loss

which arises from any failure by the Customer to maintain and keep

effective such insurances.

7.4. Any recommendations or suggestions relating to the use of any

goods supplied by the Company are given in good faith but it is for

the Customer to satisfy itself of the suitability of the goods for its own

particular purpose. Accordingly unless otherwise expressly agreed in

writing and notwithstanding and without limiting condition 7.1, the

Company gives no warranty as to the fitness of the goods for any

particular purpose even though that purpose may be specified in the

Customer’s order and any implied warranty or condition (statutory or

otherwise) to that effect is excluded.

7.5. In the case of goods or component parts of goods supplied by the

Company but not of the Company’s manufacture, the company shall

be entitled to assign to the Customer its rights against its supplier

and such rights shall be taken in extinction of and in substitution for

any rights which the Customer would otherwise have had against the

Company.

8. Intellectual Property and Data Protection

8.1. The Customer shall indemnify the Company from and against all

actions, claims, costs, charges, expenses and proceedings arising

from or incurred by reason of any defamatory or libellous matter or

any infringement or alleged infringement of any patent, trademark,

copyright, registered design or design copyright or other exclusive

right including any moral right claim or any other title of any third

party in respect of any work carried out for the Customer by the

Company.

8.2. Each of the Company and the Customer acknowledge and agree

that copyright in underlying materials processed by the Company in

the performance of its services and/or embodied in materials

produced by the Company may be owned by third parties and that

the use by the Customer of all materials processed and/or produced

by the Company shall be subject always to the Customer obtaining

any and all necessary licences and consents from the relevant

underlying rights owner(s). The Customer hereby grants to the

Company a perpetual and royalty free licence to use all materials

processed and/or produced by the Company on the Customer’s

behalf to promote the Company’s business and in connection with

appropriate industry awards.

8.3. Without limitation to the rights of the Company at law, the Customer

acknowledges and agrees that if, in the course of fulfilling the

Customer’s order and/or processing or producing materials on behalf

of the Customer, the Company discovers or devises any techniques

or know how, all rights of every kind in and to such techniques and

know how, shall vest absolutely in the Company.

8.4. The Company is an authorised data controller for the purposes of the

Data Protection Act 1998 (the “Act”) under registration number

Z9410578.

8.5. The Customer acknowledges that in the course of its dealings with

the Company, the Company may acquire personal data which

relates to the Customer and/or any of its officers, employees or

contractors and the Customer hereby consents to the Company, in

accordance with its authorisation and the Act, collecting, storing,

processing and transferring to third parties such personal data. The

Customer further consents to the sale or transfer by the Company of

such personal data in connection with an assignment or transfer of

any of its assets and its disclosure in compliance with any rule of law

or order of competent authority.

8.6. The Customer’s consents pursuant to this condition 8 are given by it

for itself and on behalf of (if any) its officers, employees and

contractors and the Customer hereby warrants to the Company that

it has the authority to give such consent on behalf of those persons.

8.7. Further details of the Company’s Data Protection Register

registration and its policy in relation to personal data can be viewed

at www.smoke-mirrors.com. That policy shall apply to personal data

acquired by the Company in its dealings with the Customer save to

the extent otherwise provided in these conditions.

9. Customer’s Materials

9.1. Where the Customer supplies any materials to the Company or

where any materials or goods which are the property of the

Customer are otherwise left in the Company’s possession:

·  notwithstanding the terms of condition 7.1. above, the Company shall

be under no liability in respect of any loss or damage or otherwise

arising as a result of damage to or the loss or destruction of such

materials or goods;

·  without limiting the terms of condition 7.3 above, the Customer shall

insure all such materials or goods to their full value against all risks;

and

·  the Customer shall remove all such materials or goods within six

months of the date of issue of the Company’s invoice relating to such

materials or goods in respect of which the materials have been

utilised and in default, The Company shall be entitled to return all

such materials or goods to the Customer and to charge the

Customer for any costs and expenses incurred by the Company in

so delivering such materials or goods. Until the removal or return of

the materials or goods, the Company shall be entitled to store the

materials and goods and to charge the Customer the reasonable

costs of so doing and to tender its account for such charges under

condition 5. In the event that the Company does not so return such

materials or goods, the Company shall be under no liability

whatsoever for any loss or damage to such materials or goods whilst

they are in the possession of the Company and the Customer is

advised to maintain insurance to the full value of such materials or

goods against all risks.

9.2. Where materials are supplied or specific instructions are given by the

Customer, the Company accepts no liability for any reduction in the

quality of the Company’s services caused by defects in or the

unsuitability of such materials so supplied or by the Company’s

adherence to such specific instructions.

10. Risk and Title

10.1. Risk shall pass to the Customer so that the Customer is responsible

for all loss, damage or deterioration to the goods the subject of the

contract:-

·  if the Company delivers the goods by its own transport or, in

accordance with a specific contractual obligation, arranges transport

for the goods at the time when the goods or a relevant part thereof

arrive at the place of delivery; or

·  in all other circumstances, at the time when the goods or a relevant

part thereof leave the premises of the Company, or

·  if risk otherwise passes in accordance with the conditions hereof.

10.2. Title to the goods the subject of the contract or any relevant part

thereof shall only pass to the Customer upon the Customer paying to

the Company all sums due and payable by it to the Company under

the contract and all other prior contracts between the Company and

the Customer;

10.3. The Company may recover goods in respect of which title has not

passed to the Customer at any time.

10.4. Until title to the goods has passed to the Customer pursuant to the

terms hereof:

·  it shall possess the goods as a bailee of the Company on the terms of

these conditions;

·  if the Company so requires the Customer shall store the goods

separately from other goods and shall ensure that they are clearly

identifiable as belonging to the Company;

·  the Customer shall be entitled to re-sell or use the goods in the ordinary

course of its business but shall account to the Company in respect of the

proceeds of sale or otherwise of such goods;

·  the Customer shall maintain records of the persons to whom it sells or

disposes of the goods and of the payments made by such persons for

such goods and will allow the Company to inspect those records on

request; and

·  the Company shall be entitled to trace the proceeds of sale or otherwise

of the goods.

10.5. The Customer hereby irrevocably authorises the Company, its officers,

employees and agents to enter upon any premises of the Customer for

the purpose of repossessing any goods in respect of which title has not

passed to the Customer and/or to ensure that the provisions of this

condition 10 are being complied with.

11. Customer input and access to/use of the

Company’s premises and equipment

11.1. The Customer shall be solely responsible for ensuring that all

information, advice and recommendations given to the Company either

directly or indirectly by the Customer or by the Customer’s agents,

servants, consultants or advisers are accurate, correct and suitable.

Examination or consideration by the Company of such information advice

or recommendations shall in no way limit the Customer’s responsibility

hereunder unless the Company specifically agrees in writing to accept

responsibility.

11.2. The Customer hereby undertakes to the Company to ensure that all of its

personnel (to include all employees and agents of the Customer) that

shall at any time have access to any premises occupied by the Company

or at which any of the Company’s equipment shall be kept all such

persons shall at all times:

·  observe all rules and regulations in force at the applicable premises to

include health and safety regulations and any rules governing the use of

equipment and/or facilities at the applicable premises;

·  keep confidential and not divulge or communicate or make any use of

any confidential information (being any and all information which relates

to and/or concerns the business or activities of the Company and/or any

customer of the Company) which the applicable person shall become

aware of as a result of being present at the applicable premises.

11.3. The Customer shall indemnify the Company from and against all actions,

claims, costs, charges, expenses and proceedings arising from or

incurred by reason of any breach or non observance of any provision of

condition 11.2 by any of the Customer’s personnel.

12. Insolvency

If the Customer shall become bankrupt or under the provisions of Section

123 of the Insolvency Act 1986 shall be deemed to be unable to pay its

debts or compounds with its creditors or in the event of a resolution

being passed or proceedings commenced for the administration or

liquidation of the Customer (other than for a voluntary winding up for the

purpose of reconstruction or amalgamation) or if a Receiver or Manager

or Administrative Receiver is appointed of all or any part of its assets or

undertaking, the Company shall be entitled to cancel the contract in

whole or in part by notice in writing without prejudice to any right or

remedy accrued or accruing to the Company.

13. Force Majeure

In the event of the performance of any obligation accepted by the

Company being prevented, delayed, or in any way interfered with by any

act of government, war, industrial dispute, strike, breakdown of

machinery or equipment, accident, fire or by any other cause beyond the

Company’s control, the Company may at its option suspend performance

or cancel its obligations under the contract without liability for any

damage or consequential loss resulting therefrom, such suspension or

cancellation being without prejudice to the Company’s right to recover all

sums owing to it in respect of goods delivered and costs incurred up to

the date of the suspension or cancellation.

14. Subcontractors

The Company shall be entitled to appoint one or more subcontractors to

carry out all or any of its obligations under any contract between the

Company and the Customer.

15. General

15.1. The Customer shall observe the provisions and requirements of all

applicable trade union agreements and shall indemnify the Company

against any costs, expenses or loss incurred by it as a result of any

failure by the Customer to do so.

15.2. Where appropriate and required by the Company (but not otherwise),

screen credits shall be given to the Company and nominated individuals

for all goods, services or facilities supplied by the Company.

15.3. Headings used in these conditions are purely for ease of reference and

do not form any part of or affect the interpretation of these conditions.

15.4. Nothing in these conditions shall operate to relieve the Company from

any liability for any fraudulent misrepresentation made to the Customer

at any time.

15.5. If any provision of this contract as applied to either party or to any

circumstance shall be adjudged by a court to be void or unenforceable,

the same shall in no way affect any other provision of this contract or the

validity or enforceability of this contract generally.

15.6. References to the Company shall, as the context permits, include its

licensees, subcontractors and assigns.

15.7. References to goods shall include any and all forms of audio and audio

visual material processed and/or produced by the Company on the

Customer’s behalf such as advertisements.

15.8. The words “include” and “including” shall not be construed restrictively.

16. Legal

The contract shall be governed and interpreted exclusively according to

the Law of England and shall be subject to the jurisdiction of the English

Courts only.