Terms & Conditions
1.1 The definitions and rules of interpretation in this clause apply to these terms:
“Agency” Creatives Agency Limited (Company number 09136500) whose registered office is at 5 - 7 New Road, Radcliffe, Manchester, M26 1LS
“Artist Fees” shall have the meaning set out in clause 7.1;
“Artist” an artist Introduced (and/or supplied) by the Agency to the Client to provide services to the Client;
“Assignment” the period in which Artists are provided to perform certain services as the Client informs the Agency from time to time in the form of an Booking Confirmation Form in accordance with these terms;
“Booking Confirmation Form” the schedule outlining the specific details of each Assignment agreed between the parties;
“Business Day” a day other than a Saturday, Sunday or public holiday when banks in London are open for business;
“Data Protection Legislation” the Data Protection Act 1998, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all applicable laws and regulations relating to the processing of personal data and privacy (including with effect from 25 May 2018 Regulation (EU) 2016/679 of the European Parliament and Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data (General Data Protection Regulation) OJ L 119/1, 4.5.2016 and any United Kingdom law, statutes, legislation or regulations passed from time to time to give effect to such regulations) and also including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction;
“Engagement” means the engagement, employment or use of the Artist by the Client or by any third party to whom or to which the Artist was introduced by the Client (whether with or without the Agency’s knowledge or consent) on a permanent or temporary basis, whether under a contract of service or for services; under an agency, license, franchise or partnership agreement; or through any other engagement directly or through a limited company of which the Artist is an officer or employee or through a limited liability partnership of which the Artist is a member or employee; or indirectly through another employment business or company which holds itself out as such and “Engage” and “Engaged” shall be construed accordingly;
“Extended Assignment” shall have the meaning set out in clause 6.5;
“Introduce” the provision to the Client of information by the Agency from time to time which identifies the Artist (including by way of example and without limitation, provision of a CV or a telephone call) and “Introduction” and “Introduced” shall be construed accordingly;
“Introduction Fee” the fee payable by the Client to the Agency under Clause 6;
“Regulations” the Conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003/3319);
“Relevant Period” shall have the meaning set out in regulation 10(5) and (6) of the Regulations;
“Remuneration” means the Artist’s fee, pay or salary, including but not limited to any bonus and commission earnings, allowances, expenses and all other taxable, and where applicable non-taxable, payments due to the Artist for services rendered to or on behalf of the Client or any third party.
“Territory” the United Kingdom;
“Unsatisfactory Artist” has the meaning set out in clause 5.5;
“VAT” value added tax chargeable under the Value Added Tax Act 1994;
1.2 A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
1.3 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.4 A reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.6 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.7 A reference to “writing” or “written” includes fax but not e-mail.
1.8 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.9 References to clauses and Schedules are to the clauses and Schedules of this agreement.
1.10 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.
2. THE TERMS
2.1 The Agency will only be bound pursuant to a Booking Confirmation Form when this is signed on behalf of the Agency.
2.2 Failure to sign and/or return the booking confirmation form whilst proceeding with the booking will be deemed to be an acceptance by the client of these terms and conditions and they shall apply to and govern the booking between the Agency and the Client.
2.3 These terms together with the Booking Confirmation Form set out the agreement between the Agency and the Client for the supply of Artists by the Agency to the Client. For the purposes of the Regulations, the Agency acts as an employment business in relation to the Introduction of Artists for assignments with the Client.
3. THE AGENCY’S OBLIGATIONS
3.1 The Agency will use reasonable endeavours to provide self employed Artists for the Client as Artists who meet the Client's minimum qualifications and other criteria for the Assignment.
3.2 The Client accepts that no warranty as to the suitability of any Artist can be given by the Agency. The Agency cannot guarantee to find a suitable Artist for each Assignment.
3.3 The Agency will take reasonably practicable steps to confirm that the Artist is suitable for the Assignment and shall inform the Client of the steps it has taken to supply the information.
3.4 Before Introducing an Artist to a Client, the Agency will take reasonably practicable steps to ensure that the Artist is aware of any legal or professional body requirements which each of them have to satisfy to enable the Artist to work for the Client in the position proposed to the extent notified by the Client to the Agency.
3.5 For bookings cancelled within two Business Day of the proposed starting time, the full booking fee will be charged and payable by the client unless the same artist is booked within 1 Business Day of the cancellation for another Assignment in which case half the booking fee will be charged and payable by the client payable to the Agency no later than 30 days after the date of cancellation.
4. CLIENT'S OBLIGATIONS
4.1 When making a request for the provision of an Artist under an Assignment, the Client will give the Agency the exact details of:
4.1.1 the date on which the Client requires the Artist to commence work and the duration, or likely duration, of the work;
4.1.2 the position which the Client seeks to fill, including the type of work the Artist in that position would be required to do, the location at which, and the hours during which, the Artist would be required to work, and any risk to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;
4.1.3 the experience, training, qualifications and any authorisation which the Client considers are necessary, or which are required by law, or by any professional body, for the Artist to possess in order to work in the position;
4.1.4 any expenses payable by or to the Artist.
4.2 The Client agrees to provide any information and assistance reasonably required by the Agency, including any information or assistance in relation to any disciplinary hearing, legal enquiry, other hearing, tribunal, arbitration or court proceedings in which the Agency and/or the Client may become involved and the Client agrees to give any evidence in such enquiries or proceedings are reasonably required by the Agency.
4.3 The Client acknowledges, and by providing the information referred to in clause 4.1, gives its consent to the disclosure of the same and any other information relating to the Client to any Artist to Artist.
4.4 The Client hereby undertakes to comply with all obligations, duties and regulations (whether statutory or otherwise and without prejudice to the generality of the foregoing those relating to the place, nature or system of work) in any way arising from or directly or indirectly connected with the performance of an Artist of an Assignment. In particular, the Client warrants that it holds valid and adequate Public and Employer’s Liability Insurance.
5.1 The parties agree that the Artists are self-employed and accordingly the Agency Workers Regulations 2010 (“AWR”) are not applicable on the grounds that the Artists are not an “agency worker” as defined in the AWR and specifically pursuant to regulation 3(2) of the AWR..
5.2 The Agency is not responsible if the artist fails to attend a booking. The Client is advised to insure against any losses, which might be suffered if the artist does not keep a booking because of ill health, or some other reason.
5.3 Any cause for complaint must be reported to the Agency by the client within 24 hours of it arising. Complaints cannot be considered and/or dealt with effectively after this period.
5.4 The Agency shall notify the Client immediately if it believes that any Artist is unsuitable for the Assignment or becomes aware of any matter that indicates that an Artist may be unsuitable for the Assignment or is inconsistent with any information previously provided including where an Artist ceases to have the appropriate skills, approvals or a right to work in the United Kingdom or where this agreement may be or has been breached.
5.5 If the Client decides that an Artist is unsuitable to perform the Assignment (an “Unsatisfactory Artist”), then the Client shall notify the Agency in writing of that fact giving the grounds for its dissatisfaction with the Unsatisfactory Artist.
5.6 If the Client notified the Agency of an Unsatisfactory Artist in accordance with clause 5.1 and the Agency agrees with such assessment:
5.6.1 where such notice has been given by the Client within 4 hours of the commencement of the Assignment, then the Assignment will immediately terminate and no Artist Fees shall be payable, and
5.6.2 in all other cases the Assignment shall terminate at the end of the day on which the Agency was notified, and Artist Fees shall be payable up to the date of such termination.
6. ENGAGEMENT OF ARTISTS OTHER THAN THROUGH THE AGENCY
6.1 Subject to clause 6.5, when the Client or any member of the Client’s group or any client of the Client with whom the Artist has/had contact with, Engage an Artist (other than through the Agency) either during the Assignment or within the Relevant Period, the Client shall notify the Agency of that Engagement and shall pay the Agency the Introduction Fee irrespective of the planned duration of the Engagement. No refund of the Introduction Fee will be paid in the event that the Employment or Engagement subsequently terminates. VAT is payable in addition to any fee due.
6.2 Subject to clause 6.5, where there has been an Introduction of an Artist to the Client which does not immediately result in the supply of the services of that Artist by the Agency to the Client, but which later leads to an Engagement of the Candidate by the Client or any member of the Client’s group or any client of the Client with whom the Temp has/had contact with, whether directly or indirectly, within 6 months from the date of Introduction, the Client shall notify the Employment Business of that Engagement and shall be liable to pay an Introduction Fee irrespective of the planned duration of the Engagement. No refund of the Introduction Fee will be paid in the event that the Employment or Engagement subsequently terminates. VAT is payable in addition to any fee due.
6.3 All Introductions are confidential. If during the Assignment or the Relevant Period the Client passes details of an Artist to any third party resulting in the Engagement of that Artist then the Client shall be liable to pay the Introduction Fee to the Agency.
6.4 The Client acknowledges and agrees that where it fails to notify the Agency of the actual Remuneration it intends to pay the Artist, the Agency shall be entitled to base the calculation of the Introduction Fee on comparable market rates for similar roles.
6.5 The Introduction Fee will not be payable pursuant to clauses 6.1 or 6.2, if the Client gives written notice to the Agency that it intends to continue the hire of the Artist (or where the Artist has not been supplied take the services of the Artist) for a further period of ninety days (“Extended Assignment”) before it Engages the Artist other than through the Agency.
6.6 Where the Client decides (in accordance with clause 6.5) to have the Artist supplied by the Agency for the Extended Assignment:
6.6.1 the Artist Fees payable by the Client during the Extended Assignment shall be those applicable immediately before the Agency received the Client's notice of election;
6.6.2 at the end of the Extended Assignment, the Client may Engage the Artist without paying the Introduction Fee; and
6.6.3 if the Client chooses an Extended Assignment, but engages the Artist before the end of the Extended Assignment, the Introduction Fee may be charged by the Agency, reduced proportionately to reflect the amount of the Extended Assignment paid for by the Client.
6.7 The Introduction Fee shall be equal to 20% of the Artist’s Remuneration arising out of the Engagement calculated on an annualised basis (calculated on the basis of a 5 working day week for 47 weeks a year) (irrespective of the duration of the Engagement).
7.1 The Client will pay the Agency Artist Fees in respect of Artists plus the Agency’s mark-up as set out in the Booking Confirmation Form (“Artist Fees”). When booking an Artist for an Assignment, the Agency shall advise the Client of the agreed Artist Fees for that Artist. The following conditions apply to the Artist Fees:
7.1.1 Fees are charged by the day. A ‘day’ is an 8-hour period (including one hour for lunch) between 9am and 6pm (e.g. 9am-5pm or 10am-6pm). An extra hour between 9am and 6pm is charged at the normal rate. The appropriate overtime rate is charged before 9am and after 6pm. Overtime is charged at one-and-a-half times the hourly rate;
7.1.2 When a location booking is made, the Client must provide transport for the Artist both to the booking location and back again unless agreed otherwise. If the Client fails to provide such transport then the Agency shall be entitled to re-charge the cost of the transport procured for the Artist. Where the Artists will use its own transport a 0.45p mile charge will be applicable. If an Artist on location is prevented from returning to work, half the daily fee will be charged to and payable by the Client for each day that the artist is unable to return to work.
7.1.3 Clients are responsible for the provision of all meals and beverage requirements of the Artists (taking into account dietary requirements) whilst the Artists are providing services to the Client on all bookings.
7.1.4 the Client shall be invoiced weekly and invoices are payable within 30 days of receipt.
7.2 Where applicable, the Agency shall charge VAT to the Client, at the prevailing rate, after the Agency has provided the Client with a VAT invoice.
7.3 If the Client fails to make any payment due to the Agency under this agreement by the due date for payment, then, the Client shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
7.4 The Client will have no right to set-off, withhold or deduct monies from any sums due to the Agency under these terms
8. DEFAULT AND EARLY TERMINATION
Without affecting any other right or remedy available to the Agency or the Client either party may terminate the agreement with immediate effect by giving written notice to the other party if:
8.1.1 the other party fails to pay any amount due under the agreement on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment;
8.1.2 the other party commits a material breach of any other term of the agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 days after being notified in writing to do so;
8.1.3 the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or
8.1.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts; or goes into administration or liquidation either compulsorily or voluntarily (save for the purposes of solvent reconstruction or amalgamation); or the other party (being an individual) is the subject of a bankruptcy petition or order; of if a receiver or administrative receiver is appointed in respect of the whole or any part of its assets; or if either party makes an assignment for the benefit of or composition with its creditors generally; or if its ceases to trade; or threatens to do any of the aforementioned things; or if any analogous events occur with respect to either party in any jurisdiction to which it is subject.
8.2 The Agency or the Client may terminate an Assignment at any time on not less than 1 week’s written notice.
8.3 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
8.4 Termination of this agreement 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 agreement which existed at or before the date of termination.
8.5 Termination of this agreement shall not affect any on-going Assignment which shall continue in full force and effect unless otherwise notified in writing by the Agency to the Client.
9.1 The Client shall indemnify and keep indemnified the Agency against any cost, claims and liabilities incurred by the Agency arising out of any Assignment or as a result of any breach by the Client of the terms of this agreement.
9.2 The provisions of this clause 8 shall survive termination of this agreement.
10.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 10.2.
10.2 Each party may disclose the other party's confidential information:
10.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 10; and
10.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
11. DATA PROTECTION COMPLIANCE
11.1 Each party shall comply with the provisions of Data Protection Legislation which is in force and the Client shall provide the Agency with such reasonable and timely assistance as the Agency may require in relation to any exercise of a data subject’s rights.
11.2 The parties shall be data controllers in common in relation to personal data of the Artists and each party shall be responsible for their own compliance with the Data Protection Legislation.
12. WARRANTIES, UNDERTAKINGS AND LIABILITY
12.1 The Client warrants that it does and it shall comply with the all relevant statutes, laws, regulations and codes of practice, including but not limited to Working Time Regulations 1998 and Health and Safety at Wok Act 1974, from time to time in force in the relevant Territory.
12.2 Each party warrants that it has full capacity and authority to enter into and perform this agreement.
12.3 It is agreed that Artists introduced or supplied to the Client by the Agency are not under the direction and control of the Agency. The Client agrees to be responsible for all acts, errors and omissions be they wilful, negligent or otherwise of the Artists from the time the Artist reports to take up duties and for the duration of the Assignment.
12.4 Nothing in this agreement is intended to limit or exclude liability for death or personal injury arising from the Agency’s negligence or any other loss which cannot be excluded by law.
12.5 The Agency shall not be liable under any circumstances whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise arising out of or in connection with this agreement or any Assignment for any loss, expense, damage, delay, costs or compensation (whether direct, indirect or consequential) which may be suffered or incurred by the Client arising from or in any way connected with the Agency seeking Artists for the Client or from the Introduction to or Engagement of ant Artist by the Client or from the failure of the Agency to introduce any Artist or otherwise arising out of or in connection with this agreement.
12.6 Subject to clauses 12.4 and 12.5, the Agency’s total liability to the Client in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise shall be limited to 1.5 times the total fees paid by the Client to the Agency under the Assignment.
13. ASSIGNMENT AND OTHER DEALINGS
13.1 Neither party shall assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under these terms or any Assignment without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
14. NO PARTNERSHIP OR AGENCY
14.1 Nothing in these terms or any Assignment is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
14.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
15. ENTIRE AGREEMENT
15.1 These terms and any Booking Confirmation Form 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.
15.2 The Client acknowledges that in entering into any Booking Confirmation Form 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 these terms or the Booking Confirmation Form. The Client agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms or the Booking Confirmation Form.
16. THIRD PARTY RIGHTS
No one other than a party to the Booking Confirmation Form, their successors and permitted assignees, shall have any right to enforce any of its terms.
17.1 Any notice given to a party under or in connection with this 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).
17.2 Any notice shall be deemed to have been received:
17.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
17.2.2 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.
17.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18. FORCE MAJEURE
Neither party shall be in breach of these terms or any Booking Confirmation form nor liable for delay in performing, or failure to perform, any of its obligations under them if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this agreement by giving 14 days' written notice to the affected party.
19.1 If any provision or part-provision of these terms or any Booking Confirmation Form 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 this agreement.
19.2 If one party gives notice to the other of the possibility that] any provision or part-provision of these terms or any Booking Confirmation Form is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
20. GOVERNING LAW AND JURISDICTION
20.1 These terms and any Booking Confirmation form and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
20.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms or any Booking Confirmation Form or their subject matter or formation (including non-contractual disputes or claims).