Terms & Conditions
TERMS and CONDITIONS BETWEEN Estry Elkinson Promotions Ltd (Registered in England Company No: 04561049), whose registered office is at, 69 Windsor Rd Prestwich Manchester M25 0DB (hereinafter referred to as "the Company"), AND the Client as hereinafter defined.
In these terms the following phrases shall bear the following meanings: "Applicant" any person placed by or through the Company with the Client to provide services to or for the Client or so registered for placement with the Company. "Assignment" the agreed period or periods during which the Company is required to provide or procure the provision of Services at the agreed locations details of which are annexed (or otherwise as agreed from time to time in writing by the parties) and form part of these terms. "Client" the person with whom the Company agrees to provide or procure the provision of goods and/or services during any Assignment whose name and address are annexed to and form part of these terms. "Client Obligations" the specific obligations which the Client has agreed in writing to perform or procure the performance of in relation to any Assignment pursuant to these terms details of which are annexed (or otherwise as agreed from time to time in writing by the parties) and form part of these terms and which shall be without prejudice to the due observance and performance of these terms insofar as they relate to the Client. "Fees" the applicable fee agreed from time to time in writing between the Company and the Client for each Assignment "Introduction" shall be deemed to be effected when the Company provides to the Client sufficient information to identify the Applicant. "Services" the goods and/or services which the Company has agreed in writing to provide or procure the provision of to the Client in relation to any Assignment pursuant to these terms details of which are annexed (or otherwise as agreed from time to time in writing by the parties) and form part of these terms. "Stock and Equipment" those agreed items of stock and equipment details of which are annexed (or otherwise as agreed from time to time in writing by the parties) and form part of these terms.
The Client appoints the Company to provide or procure the Services in connection with and during the Assignment(s) upon the terms hereinafter appearing provided always that the Client shall as a condition precedent duly pay all sums reserved by these terms and duly observe and perform the provisions of these terms on the part of the Client and provided always that the Company gives no warranty as to the suitability of any venue event Applicant Stock or Equipment utilised in connection with the provision Services pursuant to these terms selected by the Client.
These terms shall constitute the entire agreement between the Company and the Client and shall apply to all agreements between the Company and the Client to the exclusion of all other terms including any terms, which the Client may purport to impose under any Client purchase order or similar document. These terms shall be deemed accepted by the Client when the Client instructs the Company that it wishes to engage Applicants to fulfill an Assignment or that the Company shall otherwise provide or procure the provision of Services. Any variation to these terms must first be agreed in writing by the Company.
1.1 Unless otherwise previously agreed in writing by the Company the Client shall pay the Fees by way of a deposit in the amount of 50% of the Fees for the Assignment payable prior to commencement of the Assignment with the balance of all Fees payable against invoices of the Company within 28 days of the invoice date(s) unless otherwise specified.
1.2 The Client may not cancel any Assignment unless such cancellation takes place before commencement of the Assignment and with the written consent of the Company, which the Company may in its absolute discretion withhold without ascribing any reason therefor. The Client will immediately thereafter pay to the Company (without prejudice to clause 1.4) an amount calculated as follows:
1.2.1 Where cancellation takes place more than 48 hours before the date specified for the commencement of the Assignment, 50% of the value of the agreed Fees, together with all applicable VAT thereon.
1.2.2 Where cancellation takes place less than 48 hours before the date specified for the commencement of the assignment, 100% of the value of the agreed Fees, together with all applicable VAT thereon.
1.2.3 Any deposit paid shall not be refunded in any circumstances where cancellation takes place within 48 hours of the specified commencement date
1.3 All Fees shall be paid to the Company without any deduction or legal or equitable set off whatsoever.
1.4 All costs and expenses incurred by the Company or for which there is a commitment on behalf of the Client together with all applicable VAT or other relevant tax duty or impost thereon shall be paid by the Client to the Company or as the Company shall otherwise direct on first demand at any time by the Company.
1.5 Without prejudice to the generality of the foregoing the Company reserves the right in its absolute discretion to require the payment of a deposit in such amount as the Company may specify where the Company has agreed to incur costs and expenses in connection with an Assignment on behalf of the Client
2. The Company reserves the right to charge the Client interest at the rate of 5% above Barclays Bank plc base rate from time to time on the balance from time to time outstanding on all unpaid invoices from the due date to the date of payment.
3. All sums payable hereunder are exclusive of VAT and the Client agrees in addition to pay all applicable VAT thereon.
4. No warranty is given by the Company as to the suitability of any Applicant and that the Client shall be solely responsible for obtaining and verifying references, qualifications, and otherwise satisfying itself as to the suitability of the Applicant for the Assignment in which the Applicant is utilised.
5. Introductions made by the Company are confidential and the benefit of any Introduction made to a Client shall not be capable of assignment. Without prejudice to clause 7, should the Client refer any Applicant to any other person within the Client's subsidiaries, or related companies or any other third party the Client shall forthwith thereafter from time to time become liable for payment of and pay to the Company £1000 exclusive of VAT for and upon the occasion of each and every engagement of the Applicant with or by any such subsidiary, related company or third party subsequently resulting within six calendar months of the Introduction of the Applicant to the Client.
6. The Client shall satisfy itself as to the medical history and health of the Applicant and shall be solely responsible for undertaking any medical examination and investigations, which it may deem appropriate.
7. The Client hereby agrees undertakes and shall procure that neither the Client nor any principal of the Client with whom the Client has contracted to procure the Services of the Company pursuant to these terms shall directly or indirectly (either as principal or as agent) canvass or solicit any Applicant within 13 months from the date the Applicant ceases to provide Services in connection with any Assignment.
8. All and any liability on the part of the Company for all and any defective Stock and Equipment supplied by the Company and/or breaches of any express or implied conditions and warranties on the part of the Company pursuant to these terms, for negligence, for breaches of statutory duty or otherwise arising in connection with the performance, purported performance or failure of the Company to perform pursuant to these terms is to the extent permissible by law excluded PROVIDED THAT nothing in these terms shall exclude or limit liability for personal injury including death, which results from negligence on the part of and for which the Company shall be found to be liable AND PROVIDED FURTHER THAT nothing contained herein shall affect the statutory rights of the Client where he deals as consumer. Any implied warranty as to title on the part of the Company shall to the extent permissible by law be limited to such title as the Company may have.
9. All and any liabilities of the Company whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered or incurred by the Client are hereby excluded.
10. All and any liabilities of the Company to the Client howsoever and whenever arising as a result directly or indirectly from any negligent act or omission or misfeasance of any Applicant assigned to the Client by the Company and/or any other third party supplier of goods and/or services pursuant to these terms are hereby excluded.
11. Without prejudice to the generality of the foregoing, all and any claims arising pursuant to these terms must be notified to the Company within 3 hours of the commencement of the relevant Assignment.
12. The Client will indemnify the Company from time to time and at all times and keep the Company indemnified and pay repay indemnify or reimburse to the Company on demand as the case may be all costs claims losses liabilities demands insurance excesses or shortfalls proceedings or damages (including legal expenses) howsoever arising as a result of the Company agreeing to provide or procure the provision of any Services pursuant to these terms.
13. The Client acknowledges that no statement or representation which may previously have been made to it or anyone concerned on its behalf by or on behalf of the Company whether orally or in writing induced it to enter into this agreement with the Company and the Client acknowledges that any such statement or representations as aforesaid do not form part of any agreement between the Company and the Client pursuant to these terms.
14. Applicants shall not be required to provide services for more than eight hours per day to include 1 hour for lunch and two breaks of 15 minutes per day unless otherwise agreed between the Company and the Client and any hours so worked in excess of the aforesaid limits shall be charged at the hourly overtime rates then specified by the Company.
15. The Company shall not be liable to the Client for any failure to perform any of its obligations hereunder during any period in which such performance is delayed by circumstances beyond its reasonable control, provided that the Company promptly notifies the Client of the delay in writing. Should such circumstances of Force Majeure continue for a period of 1 month or more from the date of such written notice the Company may terminate any agreement in relation to Assignments not yet commenced or not yet completed and the Client shall immediately thereafter following such termination comply with the provisions of clause 1 of these terms
16. These terms are personal to the Client who may not assign sub contract or otherwise deal with them. The Company may assign subcontract charge or otherwise deal with the benefit of these terms in any way and the rights of the Company hereunder shall inure to the benefit of the successors in title and assigns of the Company.
17. If the Client shall enter into liquidation or bankruptcy or any arrangement with or for the benefit of its creditors or is in breach of its obligations hereunder the Company by notice in writing to the Client may terminate any Assignment with immediate effect without prejudice to the rights of the Company which have accrued up to such date of termination.
18. All the provisions of these terms which are intended by their nature to survive the cancellation termination or expiry of any agreement between the Company and the Client relating to any Assignment governed by these terms shall continue in force following such cancellation termination or expiry for so long as may be required to give effect thereto.
19. While the restriction in clause 7 is considered reasonable by the Client and the Company in all the circumstances it is recognised that the restrictions of the nature in question may fail for unforeseen reasons and accordingly it is hereby agreed and declared that if any such restrictions shall be adjudged to be void as going beyond what is reasonable in all circumstances for the protection of the interests of the Company and/or any subsidiary or associated company but would be valid if part of the wording thereof were deleted and or the periods (if any) thereof reduced in scope and/or the area and/or the range of activities thereby dealt with reduced in scope the said restriction shall apply with such modifications as may be necessary to make it valid and effective and any such modifications shall not thereby affect the validity of any other restriction contained in these terms.
20. If at any time any provisions of these terms is or becomes invalid illegal or unenforceable in any respect under any law the validity and enforceability of the remaining provisions shall not in any way be affected or impaired.
21. The Client warrants in each case as a continuing warranty as follows:
21.1 That it has all due authority required to enter into these presents without the concurrence of or infringement of the rights of any third party.
21.2 That all information supplied to the Company by or on behalf of the Company in connection with the Assignment is true complete and accurate in all respects.
21.3 That the Client is or is duly authorised on behalf of the beneficial owner free from encumbrances of the intellectual property rights in all items of artwork logos, designs, symbols, emblems, insignia, fascia, slogans, copyrights, know-how, information, drawings, plans, advertising publicity and other identifying materials or information whatsoever in which intellectual property rights or rights in the nature of intellectual property rights may subsist supplied to the Company by the Client required for use by the Company in connection with the Assignment and grants to the Company with full title guarantee such royalty free licence waiver and consent as the Company may require in order to lawfully use the same for the purposes of carrying out and completing the Assignment.
21.4 That the Client is the beneficial owner free from encumbrances of all items of Stock and Equipment supplied by or on behalf of the Client in connection with any Assignment and that such items are of reasonable quality and in good working order.
21.5 That unless otherwise agreed in writing, risk in all items of Stock and Equipment supplied by or on behalf of the Client shall remain with the Client.
22. Without prejudice to the generality of the foregoing, the Client shall indemnify the Company on demand against all costs claims losses liabilities demands proceedings or damages (including legal expenses) howsoever arising as a result any third party claim that the provision of the Services infringes any intellectual property right of any third party or otherwise arising as a result of any breach of the warranties contained in clause 23 of these terms.
23. The Client shall perform or procure the due observance and performance of these terms insofar as they relate to the Client using reasonable skill and care and having first obtained all required permissions consents and approvals and in compliance with all statutes statutory instruments orders and regulations made thereunder or deriving validity therefrom, all requirements of the local authority or any other competent authority and otherwise in compliance with any relevant codes of practice. Time shall be of the essence in respect of the performance of the Client hereunder.
24. The Company and the Client shall deal with all items of Stock and Equipment as agreed between them from time to time in writing. Unless otherwise agreed in writing, the Client agrees to observe and perform all agreements for the hire leasing hire purchase or credit sale of Stock and Equipment supplied by the Company as if the Client were a party to such agreements in substitution to the Company on the date such agreements are made.
25. Any notice to be given hereunder shall be in writing and sent by pre paid recorded delivery registered post or facsimile to the other party at the respective addresses appended to these terms. All changes of address are to be notified to the other party within 48 hours of the change and thereafter all notices to be given hereunder shall be sent to such last notified address.
26. The relationship of the Company and the Client shall be that of Independent Contractors.
27. This Agreement shall be read, construed and take effect in accordance with the Laws of England and the parties hereto expressly agree to submit to the non exclusive jurisdiction of the English Courts.
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