TERMS AND CONDITIONS
a) The Supplier is in the business of creating and developing photography, videography,
time-lapse videos and drone footage.
b) The Customer wishes to purchase and the Supplier wishes to provide the Services on
the terms set out in this agreement.
The following definitions and rules of interpretation apply in these Conditions.
Additional Work: work performed by the Supplier in addition to the work described in the Proposal, including in accommodating later instructions by the Customer.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6
Commencement Date: has the meaning given in clause 3.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 18.4.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with the Proposal and these Conditions.
Contract Price: the total price for the works set out in the Proposal excluding any variations in accordance with the Contract.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 5.2.
Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Deposit: means the amount contained in the Proposal.
End Product: means what is created by the Supplier after supplying the Services
GDPR: General Data Protection Regulation ((EU) 2016/679).
Intellectual Property Rights: patents, utility models, 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, in each case 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.
Proposal: the document prepared for the Customer by the Supplier tendering the work to be done, which then forms part of the contract.
Services: the services supplied by the Supplier to the Customer as set out in the Proposal.
Supplier: Media Borne Limited (CRN 11314248) whose registered office is at 82 Oakfield Road, Lobley Road, Gateshead, United Kingdom, NE11 0AE
Term: means the length, timescale, schedule of the Contract as set out in the Proposal
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) 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.
(c) A reference to writing or written includes fax, email and text
(d) Any reference to “we” or “us” means the Supplier and any reference to “you”
means the Customer.
3. Basis of contract
3.1 By signing the Proposal, the Customer agrees to purchase the Services in accordance
with these Conditions and the contents and terms contained within the Proposal.
3.2 The Proposal shall only be deemed to be accepted when both parties have signed it, at which point and on which date the Contract shall come into existence (Commencement Date). However, failure of the Customer’s signature where the Services are provided will be deemed to be conduct of acceptance of the Proposal and these Conditions.
3.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues, brochures or the Proposal, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
3.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.5 Any quotation given by the Supplier shall not constitute an offer and can be amended or withdrawn at any time by the Supplier so long as a Proposal has not been signed or accepted in accordance with clause 3.2.
3.6 The Term of the Contract is subject to variation is accordance with clause 7.
4. Supply of Services
4.1 The Supplier shall supply the Services to the Customer in accordance with the Proposal in all material respects.
4.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. The Supplier reserves the right to amend any performance dates in the Proposal so long as written notice is given.
4.3 The Supplier reserves the right to amend the Proposal if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
4.4 The Supplier warrants to the Customer that the Services will be provided using
reasonable care and skill.
4.5 The Services shall be supplied until completed by the Supplier. Completion shall be either at the expiry of the Term, unless the Customer is reasonably dissatisfied with the Services at which point Completion shall be at the reasonable satisfaction of the Customer.
5. Customer's obligations
5.1 The Customer shall:
(a) ensure that the terms of the Proposal and any information it provides are complete and accurate by reviewing the Proposal. The Customer shall be deemed to have accepted the Proposal and all terms contained therein. It is the responsibility of the Customer alone to familiarise his or herself with the contents;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's existing media, whether online or otherwise, and other facilities as reasonably required or requested by the Supplier;
(d) provide the Supplier with such information and materials as the Supplier may
reasonably require in order to supply the Services;
(e) ensure that if access is required to any of the Customer’s or 3rd party premises that any appropriate, consents or licences for access are in place prior to the Supplier needing access.
(f) comply with all applicable laws, including health and safety laws;
(g) comply with any additional obligations as set out in the Proposal; and
(h) Not utilise the Services for illegal or immoral purposes.
5.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 5.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5.3 The Customer shall attend any review meetings the Supplier shall organise, unless a reasonable reason is given for non-attendance in advance, and the review meeting shall be reorganised at a time convenient for both parties. Failure by the Customer to make themselves available for a review meeting shall, at the Supplier’s sole discretion, shall constitute a material breach of these conditions.
5.4 The Customer shall ensure they have appropriate technology to use the End Product.
6. Charges and payment
6.1 The Charges for the Services will be set out in the Proposal and shall be invoiced by the
6.2 The Supplier reserves the right to charge for any Additional Work.
6.3 The Customer shall pay all sums due in the Proposal at the times specified in the
Proposal as amended by the written agreement of both parties.
6.4 The Customer shall be liable to pay the Deposit. In the event that the Customer seeks to cancel the Contract after the Commencement Date, for reasons other than those set out at clause 12, then the Supplier, at its sole discretion, will be entitled to retain the Deposit.
6.5 In relation to charges for any Additional Work the Supplier shall invoice the Customer on completion of the Additional Work which will be charged at either a half day or full day rate with such rates being set out in the Proposal. Such an invoice may at the Supplier’s discretion include a breakdown of the costs incurred.
6.6 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated by the Supplier, and
time for payment shall be of the essence of the Contract.
6.7 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the
Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.8 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.8 will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
6.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.1 If the Customer wishes to make changes to the Services after the Commencement Date
then they will request such a variation to the Services in writing (Variation).
7.2 Any agreement to a Variation must be confirmed in writing by the Supplier, who will do so within a reasonable timescale. Time will not be of the essence for the purpose of confirming a Variation.
7.3 A Variation may constitute Additional Work in accordance with these Conditions
8. Intellectual property rights
8.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
8.2 The Customer warrants that they own the Intellectual Property Rights of any content they provide to the Supplier in relation to this agreement.
8.3 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non- transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
9. Humanitarian Clause
9.1 In performing its obligations under this agreement the Customer shall comply with:
(a) all applicable laws, statues, regulations and codes from time to time in force; and
(b) the mandatory policies being, but not limited to:
(i) Anti-slavery and Human Trafficking Policy which can be found at www.gov.uk/government/publications/anti-slavery-and-human- trafficking-policy
(ii) Corporate and Social Responsibility Policy on a similar basis to https://mediaborne.co.uk/#about-us
(iii) Anti-bribery and Anti-corruption Policy based on the information found at
(iv) Anti-money Laundering Policy based on the information found at
(v) Ethics Policy https://mediaborne.co.uk/#about-us
(vii) Charitable Policy https://mediaborne.co.uk/#about-us
9.2 The Supplier may terminate the Contract and any ongoing contractual relationship immediately by giving written notice to the Customer if they believe they have committed a breach of this clause.
10. Data protection and data processing
10.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
10.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
10.3 Without prejudice to the generality of this clause, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract. In the event that the Customer does not comply with
the Data Protection Legislation it will indemnify the Supplier for any breaches that result in the Supplier or any of its third-party contractors suffering damages, fines or other penalties.
10.4 Without prejudice to the generality of this clause, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Data Processing Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;]
(f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its
compliance with this clause
10.5 Either party may, at any time on not less than 30 days' notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
10.6 Such use of any Personal Data by the Supplier is seen as a legitimate expectation, by
the Customer, as part of the contractual relationship.
11. Limitation of liability:
11.1 Nothing in the Contract limits any liability which cannot legally be limited, including but
not limited to liability for:
(a) death or personal injury caused by negligence; and
(b) fraud or fraudulent misrepresentation;
11.2 Subject to clause 11.1, the Supplier's total liability to the Customer shall not exceed the Contract Price. The Supplier's total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
11.3 Subject to clause 11.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise arising under or in connection with the Contract for, but not limited to:
(i) Loss of profits.
(ii) Loss of sales or business.
(iii) Loss of agreements or contracts.
(iv) Loss of anticipated savings.
(v) Loss of use or corruption of software, data or information.
(vi) Loss of or damage to goodwill.
(vii) Indirect or consequential loss.
11.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
11.5 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
11.6 Subject to clause 11.1, the Supplier shall not be liable for any damage, loss or delay suffered in the completion of the Services as a result of a fault with the Customer’s existing IT systems.
11.7 This clause 11 shall survive termination of the Contract.
12.1 Without affecting any other right or remedy available to it, either party may terminate the
Contract with immediate effect by giving written notice to the other party if:
(a) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to
carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(b) the other party suspends, or threatens to suspend, or ceases or threatens to
cease to carry on all or a substantial part of its business; or
(c) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.2 In the event that the Customer believes that the Supplier has breached these Conditions then they shall immediately and in any event within 48 hours, notify the Supplier in writing the nature of the alleged breach. The Supplier will then be afforded a minimum of 14 days to provide the Customer a response (the Response). In the event that the Supplier finds that there has been a breach of this agreement then the Customer agrees that the Supplier will have a further 14 days to remedy the breach. In the event that the Supplier reasonably concludes that there has been no breach then this shall give rise to no right to terminate.
12.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
12.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.1(a) to clause 12.1(c), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
12.5 The Supplier may terminate the Contract and any ongoing contractual relationships if they believe that the Customer is using any Services for illegal or immoral purposes. In these circumstances, the Supplier reserves the right to terminate such contractual relationships without notice or reimbursement.
13. Consequences of termination
13.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Supplier shall hand over all control of any products they have created for the
(c) the license granted to the Supplier in clause 8.3 shall immediately terminate and
the Supplier shall return any Customer content in their possession.
13.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
14. Alternative Dispute Resolution
14.1 If any dispute arises in connection with the Contract, the Proposal or any ongoing contractual relationship between the parties, the parties are obliged to enter into Mediation as the first step in resolving any dispute.
15. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
16. Assignment and other dealings
16.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
16.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
17.1 Each party undertakes that it shall not at any time during the Contract, and for a period of six months after termination of the Contract, disclose to any person any confidential
information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 17.2.
17.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 17; and
(b) as may be required by law, a court of competent jurisdiction or any
governmental or regulatory authority.
17.3 Neither party shall use the other party's confidential information for any purpose other
than to perform its obligations under the Contract.
18. Entire agreement
18.1 The Contract 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.
18.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
18.3 Nothing in this clause shall limit or exclude any liability for fraud.
18.4 A person who is not a party to this agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
A waiver of any right or remedy under the Contract 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 the Contract 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 the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20. No Agency
Nothing in the this agreement, the Proposal or any further contractual relationship arising out of this agreement shall be read to as construe that either party shall be an agent of the other.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
22.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to an address shown on the front page of the Proposal.
22.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is
left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
22.3 This clause does not apply to the service of any proceedings or other documents in any
legal action or, where applicable, any other method of dispute resolution.
23. Third party rights
23.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under
the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
23.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of
any other person.
24. Governing law and Jurisdiction
24.1 The Contract, 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.
24.2 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 the Contract or its subject matter or formation.