Terms & conditions
Terms and conditions.
Issued by Toast Represents Ltd (company number 14358952, whose registered office is Bridgeway House Mellor Road, Cheadle Hulme, Cheadle, England, SK8 5AU, “Agency”).
1. Terms and Conditions
Unless and until the booking confirmation form, containing the specific details of the booking, is signed by the client and returned to the Agency, all negotiations relating to the booking of the Artist are strictly subject to contract.
The signed booking confirmation form together with these terms and conditions shall form the entire agreement between the Client and the Agency relating to each booking.
The 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, bind the parties and govern the booking between the Agency and the Client.
Any amendment and/or variations made to the booking confirmation form by the Client shall not be valid and binding unless the Agency has agreed to such amendment and/or variation in advance and confirmed such agreement by an authorised representative of the Agency signing the booking confirmation form after the amendment and/or variation has been included on the booking confirmation form.
In the event of any inconsistency or contradiction between these terms and conditions and the booking confirmation form, these terms and conditions shall prevail and bind the parties.
2. Definitions
“Agency” means the agent representing the Photographer which is Toast Represents Ltd (company number 14358952, whose registered office is Bridgeway House Mellor Road, Cheadle Hulme, Cheadle, England, SK8 5AU).
“Artist” means the commissioned Artist whose details are set out in the booking confirmation form and invoice(s) for a booking.
“Client” is the party commissioning the Artist through the Agency and includes the Client’s affiliates, assignees, and successors in title.
3. Booking Fees
3.1 Permitted use
Booking fees provide an entitlement and right for the Client to use one image via a single published medium (unless otherwise agreed in the booking confirmation form) from the date of the booking, in the United Kingdom only, for the duration and purposes specified in the booking confirmation form (“Permitted Use”).
Please note the rights granted in this section 3.1 are strictly subject to prompt payment in full of all fees owed to the Agency prior to the image’s first use.
3.2 Working hours and Overtime
Fees are charged by the day or by the hour. 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. Saturdays are charged at one-and-a half times the hourly rate and Sundays or Bank Holidays are charged at double the hourly rate. Any booking which is over 5 hours will be charged at the day rate as set out in the booking confirmation form.
3.3 Travel
Any time spent by the Artist travelling to or from a Client’s venue will be charged at half the hourly rate. This applies to any travel outside of a five mile radius of the Artist’s place of residence.
All travel costs incurred by the Artist will be charged to the Client based on the cost of any standard class train, bus or any other ticket for travel, unless otherwise agreed in writing. If travelling by a taxi the Client will be charged the cost of the journey. Any journey in full or in part in the Artist’s car will be charged based on the mileage rate permitted by HMRC for the period in which the journey is made.
3.4 Fitting fees
Any time spent by the Artist for fittings is charged at half the applicable Artist’s hourly rate.
3.5 Additional expenses
All expenses incurred by the Agency on the Clients’ behalf will be charged to the Client and will include an uplift of 15% of the total amount of the expenses.
3.6 Location bookings
3.6.1 When a location booking is made a Client must provide safe and appropriate transport for the Artist both to the booking location and back again unless otherwise agreed in writing. 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 in accordance with this section 3.6. If, once the booking has been completed by the Artist, an Artist is prevented from returning to their place of residence until the following day half the daily fee and the cost of reasonable overnight accommodation where necessary will be charged to and payable by the Client for each day that the Artist is unable to return to their place of residence to work.
3.6.2 When a location booking is made, the Client will undertake an appropriate and prudent health and safety assessment of the location and shall notify the Agency of any potential risks and how these have been mitigated in accordance with good industry practice and applicable law. The Client acknowledges and agrees that at all times the Artist’s health and safety is of paramount importance and shall ensure that the highest standards of health and safety are complied with whilst on any location bookings.
4. Additional fees
All additional fees are to be agreed at the time of the booking or before any additional usage in accordance with section 4.1.
4.1 Additional usage
Additional fees are payable for the right to use the Artist’s image or reproductions, or adaptations of, or drawings derived from that image, or any other representation of it, either complete or in part whether alone or in conjunction with any wording or other images, photographs, drawings or anticipated purposes which are in addition to and outside the scope of the Permitted Use, details of which are set out in the booking confirmation form, e.g. packaging, point of sale, posters etc. For the avoidance of doubt, additional fees are payable for the right to use the Artist’s image or reproductions, or adaptations of, or drawings derived from that image, or any other representation of it, either complete or in part whether alone or in conjunction with any wording or other images, photographs, drawings online or in any digital media including but not limited to on all social media platforms.
Unless otherwise agreed and set out in the booking confirmation form, the additional fees cover the right to use one image for the Permitted Use. Under no circumstances will each additional usage fee be less than the Artist’s advertised day rate as determined by the Agency unless determined otherwise by the Agency in its absolute discretion.
4.2 Territory
Additional fees are also payable, and subject always to the Agency’s prior consent, for the right to use the Artist’s image or reproductions etc, as set out in section 4.1 above for all known or anticipated territories other than the United Kingdom. Unless otherwise agreed the additional fees cover the right to use one image for the Permitted Use in the territory or territories agreed and stipulated on the booking form.
4.3 Other services
Additional fees are also payable for other services to be supplied by the Artist, either as part of a booking or as requested by a Client on a shoot, for example, personal appearances for PR purposes and posting images on the Artist’s own social accounts and media feeds. Fees for such services will be negotiated on a case by case basis between the Client and the Agency. The Client shall only be permitted to shoot behind the scenes footage on the basis of an agreement in writing in advance and a payment of an additional fee agreed pursuant to this section 4.3 and subject to compliance with section 12.1.
4.4 All modifications, extensions and renewal of bookings shall be at the sole discretion of the Agency.
5. Agency Fees
5.1 All bookings
Both the Agency fees and Artist disbursement will be invoiced by the Agency. Unless otherwise agreed at the time of booking the Artist disbursement is 15-25% and the Agency fee is 15% of the invoice total.
5.2 Value added tax (VAT)
All sums payable under these terms and conditions are exclusive of VAT and any other similar or equivalent taxes or duties which shall be payable in full without set off by the Client.
6. Invoicing
6.1 On all invoices payment is required to be made by the Client within 30 days of the date of the invoice. In all cases, the person booking the Artist is the Client, who will be invoiced and solely responsible for payment, unless otherwise agreed in writing at the time of booking. The Agency reserves the right in its discretion to invoice the ‘ultimate client’, (e.g. designer/ manufacturer/owner of the product in question). For example, this may be done if the Client is booking on behalf of the ultimate client, in which case the Client and the ultimate client are jointly and severally liable to pay all of the fees and settle the invoice accordingly. All fees for usage are for the right to use the Artist’s image and, once agreed, are payable whether or not the right is exercised. Unless the Agency specifically agrees otherwise, in writing, no usage for the Artist’s image is permitted until the Agency has received payment in full. The Agency reserves the right to alter payment terms if it deems appropriate, prior to booking.
6.2 If the Client fails to pay in full on the due date any amount which is payable to the Agency, without prejudice to any other right or remedy of the Agency, the amount outstanding shall bear interest both before and after any judgment at five per cent per annum over Barclays Bank plc base rate from time to time from the due date until up to and including the date that payment is made in full and such interest shall be compounded and accrued on a daily basis.
6.3 In the event the Client is providing the services on behalf of or to a third party end user, in entering into these terms and conditions the Client is acting in its capacity as the agent of the third party end user and the Client shall ensure that the third party end user:
6.3.1 enters into an agreement with the Client on the same terms as these terms and conditions;
6.3.2 acknowledges its obligations to the Agency including but not limited to the obligation to pay the Agency within 30 days of the date of any invoice received from the Agency; and
6.3.3 acknowledges that the third party end user may not use the images until payment is received by the Agency and that at all times the third party end user is subject to any restrictions as to use of the images including but not limited to territorial restrictions and restrictions as to media in which the images may be used.
6.4 Any fees received by the Client from the third party end user relating to any of the rights or benefits conferred on the Client by these terms and conditions shall be deposited in a designated Agency account by the Client (the Third Party End User Fees). The Third Party End User Fees shall be held on trust for the Agency as beneficiary until such time as all outstanding fees owed by the Client are paid in accordance with the terms of these terms and conditions.
7. Exclusivity Fees
Unless otherwise agreed in the booking confirmation form the Artist is supplied to the Client by the Agency on a non-exclusive basis and the Artist shall be free to provide similar and/or competing services to any third party and/or competing product or brand of the Client. An additional fee will need to be agreed when the use of the Artist’s image or the service to be supplied by a Artist in relation to a product is required on an exclusive or semi-exclusive (for example sector specific or territorial exclusivity) basis which precludes supplying services or allowing the use of the Artist’s image for competing and/or particular sector of products or within a particular territory. An Artist can supply services to and allow use of the Artist’s image by any competitor unless such an exclusivity fee is negotiated and paid by the Client. It is the Client’s responsibility to carry out any research, check and determine for itself whether the Artist supplied has undertaken or is booked to undertake any conflicting work.
8. Provisional bookings
Provisional bookings will be automatically cancelled if they are not confirmed by the Client (by signing and returning the booking confirmation form) within 24 hours of the proposed booking.
9. Cancellations
9.1 Cancellation of booking by the Client
9.1.1 Within 24 hours of the booking call time the full booking fee will be charged and payable by the Client unless the same Artist is booked within 24 hours of the cancellation in which case half the booking fee will be charged and payable by the Client.
9.1.2 Outside 24 hours of the booking call time but within 48 hours of the booking call time of the booking date then half the booking fee will be charged and payable by the Client.
9.1.3 The full booking fee will be charged and payable by the Client for bookings of more than three days duration: within a period equal to or less than the length of the booking, then Saturdays, Sundays and bank and public holidays are excluded for the purpose of determining the cancellation notice period.
9.2 Cancellation of booking by the Agency
9.2.1 Should the Agency want to cancel a booking then it shall use reasonable endeavours to provide the Client with reasonable notice, take steps to offer to the Client a suitable replacement and/or substitute and take such other reasonable steps as are reasonably practicable to mitigate against such cancellation.
9.2.2 In any event the Agency shall be entitled to cancel a booking at any time and for any reason prior to the booking date without liability to the Client and the Client will procure the necessary insurance cover with a reputable insurance provider to protect against such cancellation and any associated liability and the Agency shall not be liable to the Client for any costs incurred as a result of such cancellation.
9.3 The Client acknowledges, accepts and agrees the Artist is independent and self-employed and is not a worker. The Artist has a right to control entirely the manner in which they perform each booking which may involve the Artist requiring a substitute who attends and/or performs the booking. The Client acknowledges the need to procure appropriate insurance, including as set out at section 17, in this regard.
10. Weather Related Cancellations
On the first occasion of cancellation due to weather related conditions half the booking fee is charged and payable by the Client unless the Client fails to cancel in time to prevent the Artist’s attendance in which case the full booking fee is charged and payable by the Client. On the occasion of the second cancellation due to weather conditions and any subsequent cancellations the full booking fee is charged and payable by the Client.
11. Meals
Clients are responsible for the provision of all nutritious meals and beverage requirements of the Artists (taking into account dietary requirements) whilst the Artists are providing services to the Client on all bookings.
12. Artist Care and Safety
12.1 Nude, semi-nude, see-through, bathing suit or lingerie photography require the express prior written approval of the agency. The use of the Artist’s image must not be directly or indirectly scandalous, pornographic, derogatory, or a cause of ridicule or embarrassment to the Artist. The image must not be altered or distorted.
12.2 Subject to the restrictions in sections 4.3 and 12.1, behind-the-scenes filming is permitted on condition that the Artist is hair-and-make-up ready or presentable for camera.
12.3 The Client shall be solely responsible for ensuring the Artist is treated with respect and professionalism, and that all necessary steps are taken to ensure the safety, health and wellbeing of the Artist is protected, at all times by the Client and/or any third parties engaged by the Client in relation to the delivery of the services. Such steps shall include without limitation:
12.3.1 ensuring that the venue for the provision of the services and the working conditions are entirely safe and secure and maintained at a suitable temperature and allow the Artist to provide the services in compliance with all health and safety best practice, standards, regulations, codes and laws;
12.3.2 allowing the Artist to take suitable and regular rest periods, to ensure the Artist is able to maintain suitable amounts of rest and refreshment whilst delivering the services;
12.3.3 ensuring that all of the third parties engaged by the Client in relation to the delivery of the services are suitably qualified, experienced and professional and treat the Artist in a professional and respectful manner;
12.3.4 ensuring that no one imposes upon the Artist any action, activity or environment which is either dangerous, degrading, unprofessional, unsafe and/or demeaning to the Artist;
12.3.5 ensuring that the services are delivered and the Artist is treated in accordance with Equity Bullying and Harassment Guide and/or any other codes of practice or guidance issued by the Agency and/or Equity from time to time;
12.3.6 providing the Artist with an appropriate changing and dressing area to ensure that the Artist can prepare for the provision of the services and also maintains his/her privacy; and
12.3.7 always include a credit in the form of “Artist’s name” @ “Toast Represents”, wherever a credit is applied.
13. Warranties
13.1 The Client warrants and represents to the Agency that:
13.1.1 it has full capacity to enter into these terms and conditions and perform its obligations under these terms and conditions;
13.1.2 the booking form is executed by a duly authorised representative of the Client;
13.1.3 it will take all steps necessary to ensure that the Artist is protected and treated in accordance with all applicable laws, good industry practice and section 12 above;
13.1.4 it has all necessary permits, licences and consents to enter into and to perform its obligations under these terms and conditions and such obligations shall be performed in compliance with all applicable laws, enactments, orders, regulations, and other similar instruments (including but not limited to any employment law or health and safety requirements in effect from time to time); and
13.1.5 it will promptly disclose to the Agency in writing all necessary information (including without limitation the location and length of the shoot and requirements for any foreign travel) and details relating to the provision of the services to enable the Agency to ensure that the Artist is suitably prepared and able to perform the services.
14. Indemnity
14.1 The Client shall indemnify the Agency and keep the Agency indemnified against all costs, expenses, damages and losses suffered or incurred by the Agency and/or Artist (including but not limited to all legal costs and expenses on a full indemnity basis) arising out of or in connection with:
14.1.1 any breach by the Client of these terms and conditions, including but not limited to, any breach by the Client of section 7, 9 and 12 of these terms and conditions;
14.1.2 any breaches of section 12.3 by any third parties engaged by the Client;
14.1.3 any claim brought by a third party against the Agency in circumstances where, as a result of the Client’s acts or omissions, the distribution of images, in whatever form, outside of the agreed territory and in breach of these terms and conditions has caused the Agency to be in breach of the terms of an exclusive agreement with such third party; and
14.1.4 any breach by the Client of any applicable laws and regulations including but not limited to any breach of applicable health and safety or employment laws and regulations as amended from time to time.
15. Test and Experimental Photography
When the Agency agrees to allow a photographer to take test or experimental photography the photographer is not entitled to use, or allow others to use, test and/or experimental photographs or test commercials for commercial purposes unless specific arrangements have been made and agreed in writing before the photographic session.
16. Intellectual Property Rights
16.1 The photographer and/or the Client and anyone obtaining rights from or through the photographer/Client is not entitled to use any images for any usage beyond the Permitted Use, or any another usage agreed or permitted in accordance with under sections 3.1, 4, and 15. The Client will procure that the photographer/Client agrees to restrict the use and exploitation of the copyright content of the photograph or any other intellectual property rights. If the Client is not the photographer, the Client shall draw these terms and conditions to the attention of the photographer and procure his agreement to them before the shoot commences.
16.2 All rights not expressly granted to the Client under these terms and conditions are hereby fully reserved to the Agency and/or the Artist as appropriate. In particular, the Client acknowledges and agrees that the Agency is the owner or licence holder of all commercial rights and intellectual property rights relating to the Artist and the Agency and the Client shall not be entitled to exploit or enter into any commercial or other agreement to exploit any rights relating to the Artist or the Agency other than the rights specifically granted to the Client under these terms and conditions.
16.3 For the avoidance of doubt, notwithstanding anything in the booking confirmation form or these terms and conditions, including but not limited to any grant of exclusivity over the use of the images, the Client acknowledges and agrees that the Agency and the Artist may use the images (or reproductions etc. as set out in section 4.2 above) resulting from any booking in any form whatsoever for the following purposes:
16.3.1 in order for the Artist and the Agency to promote the Artist and in the search of future booking opportunities for the Artist; and
16.3.2 for internal and promotional purposes.
Subject to the remainder of section 16, the Artist and the Agency acknowledge and agree not to exploit the images for commercial purposes, other than as set out in the booking confirmation form and these terms and conditions.
17. Liability and Insurance
17.1 No party excludes or limits its liability under these terms and conditions for:
17.1.1 death or personal injury caused by its negligence;
17.1.2 fraudulent misrepresentation; or
17.1.3 any other type of liability which cannot by law be excluded or limited.
17.2 Subject to section 17.1, the Agency limits its liability under these terms and conditions, whether such liability arises in contract, tort (including without limitation negligence) or otherwise, so that the maximum liability of the Agency for all claims under these terms and conditions shall be limited to and shall not in aggregate exceed the total amount of the fees paid or payable to the Agency;
17.2.1 the Agency shall not be liable for:
a) loss of business, use, profit, anticipated profit, contracts, revenues, goodwill or anticipated savings;
b) product recall costs;
c) failure by the Artist to attend a booking for whatever reason;
d) a decision by the Artist to require a substitute who attends and/or performs the booking;
e) damage to the Client’s reputation; or
f) consequential, special or indirect loss or damage;
even if the Agency has been advised of the possibility of such loss or damage.
17.3 The Client shall effect and maintain (and shall require its ultimate client, if any, to maintain) throughout the continuance of this terms and condition insurance policies which provide appropriate coverage adequate enough to cover all liabilities and risks of the Client that may arise under these terms and conditions and any insurance cover it is required to place in accordance with applicable law. Such insurance policies shall include without limitation:
17.3.1 cancellation insurance to protect against the potential liabilities which the Agency and the Client may incur as a consequence of the provisions of sections 9 and 10;
17.3.2 employee liability insurance, as required by the Employer’s Liability (Compensation Insurance) Act 1969 and otherwise, which covers any Artist who is delivering the services to the Client under the Client’s direction and control as if he/she were an employee of the Client, in an amount sufficient to cover the health and safety and future earnings of such Artists;
17.3.3 public liability insurance to a level which provides appropriate coverage adequate enough to cover all public liabilities and risks; and
17.3.4 travel insurance to cover the activities of the Artists whilst travelling to and from the location of the services.
18. Contract and Authority
All matters relating to the use of the Artist’s image and commercial rights, any other services supplied by the Artist and all fees must be negotiated and agreed only with the Agency. The Client shall not attempt to negotiate, nor allow others to negotiate, with the Artists directly. If the Client or the photographer or any other person on their behalf or connected with them obtains the Artist’s signature on any document or the Artist’s purported verbal agreement to anything outside of the scope of these terms and conditions, such signature or verbal agreement shall not constitute a variation of these terms and conditions and is not binding on the Artist or the Agency unless and until it is agreed in writing by the Agency (such agreement to be determined in the Agency’s absolute discretion).
19. Complaints and Disclaimer
Any cause for complaint must be reported to the Agency by the Client as soon as it arises. Complaints cannot be considered and/or dealt with effectively after the services have been delivered. Whilst the Agency will use reasonable endeavours to ensure that the Artists provide a satisfactory and efficient services to Clients, as the agent, the Artist is self- employed and the Agency cannot be held responsible for an Artist’s conduct or behaviour whilst delivering the services and in this regard the Agency shall not be held liable for any costs, expenses or losses suffered as a consequence of the behaviour or conduct of any Artist.
20. Force Majeure
The Agency shall not be liable to the Client for any delay in performing or failure to perform any of its obligations under these terms and conditions which is due to any cause beyond its control and which is unknown to, and cannot reasonably be anticipated by the Agency including without limitation fire, floor or catastrophe, acts of God, insurrection, workforce action, war or riots, (an “Event of Force Majeure”) and the Agency’s obligations under these terms and conditions shall be suspended for so long as the Event of Force Majeure continues and to the extent that it is so delayed.
21. Data Protection
21.1 In this section the following definitions apply:
21.1.1 the terms "data controller", "data processor", "data subject", "processing" and “personal data” bear the respective meanings given to them in the Data Protection Act 1998 (the “Act”) and, from the date on which it comes into force in the UK and for so long as it is in force, the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”), and "data protection principles" means the eight data protection principles set out in Schedule 1 to the Act and the data protection principles set out in the GDPR (as applicable);
21.1.2 data includes personal data;
21.1.3 “Consent” means a freely given, specific, informed and unambiguous indication of an individual’s consent recorded in writing;
21.1.4 “Data Subject Access Request” means a request from a data subject relating to their personal data pursuant to the rights granted under the applicable Data Protection Legislation;
21.1.5 “Good Industry Practice” means the exercise of that degree of skill, diligence, professionalism, prudence, foresight and management which would be expected from a market leading skilled and experienced operator engaged in the same type of undertaking under the same or similar circumstances; and
21.1.6 “Artist Personal Data” means any personal data (including Sensitive Personal Data) relating to the Artist; and
21.1.7 “Sensitive Personal Data” has the meaning given in the Act.
21.2 Each party shall comply with all applicable data protection and privacy laws and regulations, including, without limitation, the provisions of the applicable Data Protection Legislation and not by any act or omission put the other party in breach of them in connection with this agreement.
21.3 For the purposes of these terms and conditions, the parties acknowledge, accept and agree the Agency is the data controller and the Client is the data processor.
21.4 Where the Agency transfers Artist Personal Data and/or other personal data to the Client, the Client warrants and represents it shall:
21.4.1 ensure it has implemented appropriate and effective technical and organisational measures to protect such data against unauthorised or unlawful processing and accidental loss or damage;
21.4.2 where necessary and/or applicable provide full and open co-operation and prompt assistance to the Agency, and ensure it has the appropriate technical and organisational measures in place, to enable the Agency to comply with any valid Data Subject Access Request without delay (and at the latest within 14 days of receipt of the Data Subject Access Request);
21.4.3 where necessary and/or applicable, provide full co-operation and assistance to the Agency to ensure the Artist Personal Data and/or other personal data is deleted without delay in response to a valid request from a data subject;
21.4.4 where necessary and/or applicable, provide full co-operation and assistance to the Agency in ensuring the Artist Personal Data and/or other personal data is up to date, complete and accurate;
21.4.5 maintain accurate and detailed internal records of all processing and (where applicable) storage of the Artist Personal Data and/or other personal data (and make such records available to the Agency and/or the relevant supervisory authority for the purposes of an investigation), demonstrating compliance with the data protection principles including but not limited to specifying the relevant conditions for processing the Artist Personal Data and/or other personal data (including but not limited to obtaining relevant and up to date Consents) and specifying and recording the fair and lawful purposes for which the Artist Personal Data and/or other personal data is being processed;
21.4.6 ensure that access to the Artist Personal Data is limited to those employees or authorised third parties who reasonably require access to the Artist Personal Data pursuant to these terms and conditions and that all employees and authorised third parties are informed of the confidential nature of the Artist Personal Data. If the Client subcontracts or grants access to the Artist Personal Data pursuant to this section 21.4.6, the Client shall ensure that such authorised subcontractors or employees enter into an agreement with the Client containing data protection provisions on terms at least as onerous as this section 21;
21.4.7 not, by any act or omission, put the Agency in breach of, or jeopardise any registration under, any Data Protection Legislation and/or any applicable laws;
21.4.8 not transfer the Artist Personal Data and/or other personal data to countries outside the European Economic Area;
21.5 in the event of any breach of the applicable Data Protection Legislation, the Client shall:
a) immediately and fully notify the Agency in writing of any notices in connection with the processing of any of the Artist Personal Data and/or other personal data;
b) provide such information and assistance as the Agency may reasonably require, including in relation to any notifications to the national data protection authority;
c) take all necessary precautions to preserve the integrity of any Artist Personal Data and/or other personal data which it processes and to prevent any corruption or loss of such data; and
d) in such event and if attributable to any default by the Client promptly restore the data at its own expense or, at the Agency’s option, promptly reimburse the Agency for any expenses it incurs in having the data restored by a third party.
21.6 The Client shall indemnify the Agency against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Agency arising out of or in connection with any breach by the Client of any of its obligations under this clause 21.
22. Interpretation of Terms and Conditions
22.1 For the purpose of the relationship between the Client and the Agency the Client acknowledges, accepts and agrees that the Agency is the supplier of services which shall be strictly and exclusively governed by these terms and conditions. These terms and conditions apply to every offer, quotation, acceptance, purchase order, confirmation order, specification and/or contract for the sale and supply of services or goods (including services ancillary thereto) by the Agency and supersede any other terms of the Client and take precedence over and override and exclude any other terms stipulated or incorporated or referred to by the Client whether in the booking confirmation form or in any negotiations and any course of dealing established between the Agency and the Client. The Client acknowledges that there are no representations, statements or promises made or given by or on behalf of the Agency outside these terms and conditions which have induced the Client to enter into these terms and conditions (which expression shall include any contract of which these terms and conditions form part).
22.2 If there is any conflict between any of these terms and conditions and the booking confirmation form then the booking confirmation form shall prevail without detriment to the remaining unaffected terms of these terms and conditions.
22.3 The booking confirmation forms part of these terms and conditions and shall have effect as if set out in full in the body of these terms and conditions. Any reference to these terms and conditions includes the booking confirmation form.
22.4 For the purpose of these terms and conditions the words “agreed”, subject to section 1, means agreed in writing in the booking confirmation form and signed by duly authorised representatives of both the Agency and the Client.
23. General
23.1 If any of the terms, conditions or provisions of these terms and conditions or the booking confirmation are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent, be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
23.2 Any termination of all or part of these terms and conditions shall not affect the coming into force or the continuance in force of any provision of these terms and conditions which is expressly or by implication intended to come into force or continue in force on or after such termination.
23.3 Except as otherwise expressly provided in these terms and conditions, all representations, warranties, undertakings, agreements, covenants, indemnities and obligations made or given or entered into by the Client and the ultimate Client under these terms and conditions are assumed by them jointly and severally.
23.4 Nothing in these terms and conditions shall render any party a partner or agent of the other. Except as expressly permitted by these terms and conditions, nothing shall allow a party to purport to undertake any obligation on behalf of the other nor expose the other party to any liability nor pledge or purport to pledge the other’s credit.
23.5 No failure to exercise and no delay in exercising on the part of either party of any right, power or privileged under these terms and conditions shall operate as a waiver of it. Nor shall any single or partial exercise of any right, power or privilege preclude the enforcement of any other right, power or privilege. Nor shall the waiver of any breach of a provision be taken or held to be a waiver of the provision itself. For a waiver to be effective it must be made in writing.
23.6 Except as and to the extent expressly otherwise specified in these terms and conditions, the rights and remedies contained in these terms and conditions are cumulative and are not exclusive of any rights or remedies provided by law or elsewhere in these terms and conditions.
23.6.1 The parties agree to keep, and to instruct its agents, employees, advisers and sub- contractors with knowledge hereof to keep these terms and conditions strictly private and confidential and not to disclose any details relating to the same, subject to disclosure in the following circumstances:
(a) to enable enforcement of the party’s rights under these terms and conditions;
(b) with the prior written consent of the other party; and
(c) as required by any applicable law.
23.7 These terms and conditions and the booking form constitute the entire agreement between the parties and supersede any previous agreement or arrangement between the parties relating to the subject matter of these terms and conditions.
23.8 No variation or amendment to the terms of these terms and conditions shall be valid and binding unless in writing and signed by an authorised representative of each party.
23.9 Except where these terms and conditions expressly provides otherwise, a person who is not a party to these terms and conditions has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these terms and conditions but this does not affect any right or remedy of a third party which exists or is available apart from under that Act. The Client acknowledges, accepts and agrees that the Agency has entered into these terms and conditions for the benefit of itself and the Artist and accordingly the Artist shall be entitled to enforce these terms and conditions as if he/she were a party to these terms and conditions.
23.10 Subject to section 23.11, the parties agree that these terms and conditions and its provisions will be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English Courts.
23.11 Notwithstanding section 23.10, the parties to these terms and conditions agree that the Agency may enforce its rights under these terms and conditions in any other court of competent jurisdictions outside of the courts of England and Wales.