Joogleberry is contracting with the Client, for provision of the Services by the Artiste for the Event (all terms as defined below). Joogleberry shall provide the Services of the Artiste for the Event in accordance with these Client Agreement Terms and Conditions (the “Agreement”).
1 DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement:
“Artiste” means the artiste detailed on the Booking Confirmation, who is to provide the Services by performing at the Event, in accordance with the terms of this Agreement;
“Booking” means the booking of the Artiste to provide the Services by performing at the Event, made with Joogleberry, in accordance with this Agreement;
“Booking Confirmation” means the confirmation form with details of the Booking, which incorporates the terms and conditions of this Agreement, as issued by Joogleberry in accordance with Clause 2 of this Agreement;
“Client” the person, firm or company detailed on the Booking Confirmation form, who is to be provided with the Services, in accordance with the terms of this Agreement;
“Client’s Equipment” any staging, equipment, systems, cabling or facilities provided by the Client (or provided by a third party to the Client in connection with the Event) and used directly or indirectly in the supply of the Services;
“Event” means the event where the Artiste is to provide the Services, as detailed on the Booking Confirmation form;
“Fee” means the fee payable by the Client to Joogleberry for the provision of the Artiste at the Event for the performance of the Services, payable in accordance with the terms of this Agreement and as detailed in the Booking Confirmation form;
“Intellectual Property Rights” all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Joogleberry” means Joogleberry Ltd, a company registered in England and Wales under number 08277052, whose registered office is at 73 Church Road, Hove, East Sussex BN3 2BB and whose principal office address is at 43 Lansdowne Street, Hove BN3 1FT;
“Joogleberry’s Equipment” means any equipment, including props, sound equipment, staging, tools, systems, cabling or facilities, provided by Joogleberry or the Artiste providing the Services, and used directly in the supply of the Services;
“Services” the services to be provided under this Agreement, being the performance by the Artiste at the Event as detailed in the Booking Confirmation form, together with any other services which Joogleberry provides or agrees to provide to the Client in accordance with this Agreement;
“VAT” value added tax chargeable under English law for the time being and any similar additional tax
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 Words in the singular shall include the plural and vice versa.
1.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.5 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
2 APPLICATION OF TERMS AND CONDITIONS OF THIS AGREEMENT
2.1 The terms and conditions of this Agreement shall:
2.1.1 apply to and be incorporated into the Agreement; and
2.1.2 prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s purchase order/booking, confirmation of booking issued by the Client, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.
2.2 The Client’s booking with Joogleberry, or the Client’s acceptance of a quotation for Services by Joogleberry, constitutes an offer by the Client to purchase the Services specified in it (as confirmed in the Booking Confirmation) on the terms and conditions of this Agreement. No offer placed by the Client shall be accepted by Joogleberry other than:
2.2.1 by a written acknowledgement issued by Joogleberry in the form of the Booking Confirmation; or
2.2.2 (if earlier) by Joogleberry, through the Artiste attending the venue where the Event is due to take place, to provide the Services,
when an Agreement for the supply and purchase of those Services on the terms and conditions of this Agreement will be established. The Client’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern this Agreement.
2.3 Quotations are given by Joogleberry on the basis that no Agreement shall come into existence except in accordance with Clause 2.2. Any quotation is valid for a period of 30 days from its date, provided that Joogleberry has not previously withdrawn it.
3 COMMENCEMENT AND DURATION
3.1 The Services supplied under this Agreement shall be provided by Joogleberry through the provision of the Artiste at the Event.
3.2 In the event that the Client wishes to book further Services, then they must contact Joogleberry to check availability of the Artiste and to agree terms relating to that additional Booking, which shall be confirmed by Joogleberry under a separate Booking Confirmation.
4 JOOGLEBERRY’S OBLIGATIONS
4.1 Joogleberry shall use reasonable endeavours to provide the Services through performance by the Artiste at the Event, in all material respects with the description set out in the Booking Confirmation. Joogleberry shall be entitled to provide a substitute for the Artiste, of suitable level and experience, in order to provide an appropriate artiste to provide the Services by performance at the Event.
4.2 Joogleberry shall use reasonable endeavours to meet the dates and times agreed for the purposes of performing the Services.
4.3 Joogleberry shall use all reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises (or those premises where the Event is due to take place where the venue has been hired or booked out by the Client) and that have been communicated to it clearly prior to the Event, provided that it shall not be liable under this Agreement if, as a result of such observation, it is in breach of any of its obligations under this Agreement or any applicable laws or obligations of insurance.
5 CLIENT’S OBLIGATIONS
5.1 The Client shall:
5.1.1 co-operate with Joogleberry in all matters relating to the Services and engagement of the Artiste;
5.1.2 provide, for Joogleberry, sub-contractors (including the Artiste(s)), at no charge, access to the Client’s premises, or venue where the Event is to be located, data and other facilities as requested by Joogleberry, in order to provide the Services;
5.1.3 be responsible (at its own cost) for arranging the venue for the Event and all other aspects of the Event (other than the provision of the Artiste to perform at the Event or any other Services agreed to be provided by Joogleberry), including (but not limited to) the hire of appropriate premises;
5.1.4 inform Joogleberry of all health and safety rules and regulations and any other reasonable security requirements that apply to any premises where the Event is to take place, or that the Artiste will need to comply with for the purposes of accessing and attending the Event;
5.1.5 ensure that all Client’s Equipment is in good working order and suitable for the purposes for which it is to be used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
5.1.6 not permit the Joogleberry Equipment, or any equipment, instruments or materials brought by the Artiste to the venue where the Event is taking place, to be used by other performers, or persons, except with specific permission of Joogleberry and/or the Artiste (as appropriate); and
5.1.7 obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, including the performance of the Artiste at the Event and the use of the Client’s Equipment in relation to the Event and/or the use of Joogleberry’s Equipment in relation to the Event, prior to and for the duration of the Event.
5.2 If Joogleberry’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, Joogleberry shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
5.3 The Client shall be liable to pay to Joogleberry, on demand, all reasonable costs, charges or losses sustained or incurred by Joogleberry (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Agreement, subject to Joogleberry confirming such costs, charges and losses to the Client in writing.
5.4 Re-engagement of the Artiste: The Client shall not, without the prior written consent of Joogleberry, at any time from the date of this Agreement comes into force to the expiry of eighteen (18) months from last date of supply of the Services, directly or through another third party, solicit or entice away the Artiste who was engaged for the provision of the Services at the Event, or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of Joogleberry.
6 CANCELLATION OF, AND CHANGES TO, A BOOKING
6.1 If the Client does not pay the Deposit or Balance (as such terms are defined in Clause 7.1 below) on their due dates, then Joogleberry shall be entitled (in addition to any other rights or remedies it may have) to cancel the provision of the Services and the Booking of the Artiste for the Event and, in the event that the Client has paid any Deposit in connection with the Booking, retain such Deposit and the Client shall be liable for any other cancellation fees detailed in this Clause 6 or other sums detailed in the terms of this Agreement.
6.2 Once a Booking has been confirmed by Joogleberry issuing its Booking Confirmation, such Booking shall not be cancelled by the Client, unless such cancellation is agreed to in writing by Joogleberry and shall be subject to the following “Cancellation Fees”:
6.2.1 more than 90 days before the Event, 50% of the Fees are due and payable by the Client. For the avoidance of doubt, if the Client has already paid the Deposit in accordance with Clause 7.1.1, then such Deposit shall be retained by Joogleberry in accordance with Clause 6.1 above;
6.2.2 between 89-30 days before the Event, 75% of the Fees are due and payable;
6.2.3 less than 29 days before the Event, 100% of the Fees are due and payable.
6.3 The Cancellation Fees detailed in Clause 6.2 shall be payable within seven (7) days of the cancellation of an Event.
6.4 In the event that the Artiste is unable to perform the Services for the Event due to illness, then Joogleberry shall inform the Client as soon as reasonably practical. If Joogleberry is unable to find a suitable replacement for the Artiste for the Event, then Joogleberry shall cancel the Booking and shall provide a refund to the Client of Fees paid to date in respect of the Booking for that Artiste only, such refund to be processed as soon as possible. For the avoidance of doubt, Joogleberry shall not be liable for payment of any other sums to the Client in respect of such cancellation under this Clause 6.4, including (but not limited to) sums incurred by the Client in finding a replacement performer itself, or any other indirect or consequential losses relating to such cancellation.
6.5 If Joogleberry agrees to any changes to a Booking that are requested by a Client once a Booking has been confirmed by Joogleberry (through Joogleberry issuing its Booking Confirmation form), then the Client shall be responsible for the payment of any additional Fees in respect of such changes to the Booking, such Fees being due and payable upon Joogleberry issuing its invoice for such additional Fees, in accordance with Clause 7 below.
6.6 The Client warrants that no previous or current contract exists that may prevent this Agreement from being fulfilled and that no such future contract will be entered into that would prevent this Agreement being fulfilled.
7 CHARGES AND PAYMENT
7.1 The Fees payable in connection with the Event shall be set out in the Booking Confirmation form and shall be payable as follows (unless specified in the Booking Confirmation):
7.1.1 a deposit of 50% of the Fees is payable by the Client to Joogleberry upon Joogleberry issuing its Booking Confirmation form to the Client, in accordance with Clause 2 (“Deposit”);
7.1.2 the balance of the final 50% of the Fees (“Balance”) is payable by the Client to Joogleberry upon Joogleberry issuing its invoice for the Balance on or before three (3) weeks prior to the date of the Event.
7.2 Unless specified on the Booking Confirmation Form, Fees exclude the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Joogleberry engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by Joogleberry for the supply of the Services (“Expenses”). Such Expenses, materials and third party services shall be invoiced by Joogleberry at cost if Joogleberry and the Client have agreed that such Expenses are chargeable to the Client, as mentioned on the Booking Confirmation form.
7.3 Fees also exclude VAT, which Joogleberry shall add to its invoices at the appropriate rate.
7.4 The Client shall pay each invoice submitted to it for the Fees by Joogleberry, in full and in cleared funds, upon receipt of the invoice issues in accordance with Clause 7.1.
7.5 Without prejudice to any other right or remedy that it may have, if the Client fails to pay Joogleberry on the due date, Joogleberry may:
7.5.1 charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and Joogleberry may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
7.5.2 suspend all Services and the provision of the Artiste at the Event until payment has been made in full.
7.6 Time for payment shall be of the essence of this Agreement.
7.7 All sums payable to Joogleberry under this Agreement shall become due immediately on its termination, despite any other provision. This Clause 7.6 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
7.8 Joogleberry may, without prejudice to any other rights it may have, set off any liability of the Client to Joogleberry against any liability of Joogleberry to the Client.
7.9 The Client shall not make any payments directly to the Artiste and shall make all payments for Fees directly to Joogleberry in accordance with this Clause 7 and the terms of this Agreement.
8 CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS
8.1 As between the Client and Joogleberry, all Intellectual Property Rights and all other rights in Joogleberry’s data or other materials provided to the Client (if any) shall be owned by Joogleberry.
8.2 The Client shall keep in strict confidence all technical or commercial know-how, processes, customer lists, details of Fees and charging structures of Joogleberry, Artiste details (which must be held by the Client in accordance with data protection legislation and not used by the Client for any purposes outside of the purposes of this Agreement), supplier contacts or initiatives which are of a confidential nature and have been disclosed to the Client by Joogleberry, its employees, agents or sub-contractors (including, but not limited to, the Artiste) and any other confidential information concerning Joogleberry’s business or its services which the Client may obtain. The Client shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Client’s obligations to Joogleberry, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Client
8.3 This Clause 8 shall survive termination of this Agreement, however arising
9 LIMITATION OF LIABILITY – THE CLIENT‘S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CLAUSE
9.1 This Clause 9 set out the entire financial liability of Joogleberry (including any liability for the acts or omissions of its employees, agents and sub-contractors, including the Artiste) to the Client in respect of:
9.1.1 any breach of this Agreement;
9.1.2 any use made by the Client of the Services or any part of them; and
9.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
9.3 Nothing in the terms and conditions of this Agreement limits or excludes the liability of Joogleberry:
9.3.1 for death or personal injury resulting from negligence; or
9.3.2 for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by Joogleberry.
9.4 Subject to Clauses 9.2 and 9.3:
9.4.1 Joogleberry shall not be liable for:
22.214.171.124 loss of profits; or
126.96.36.199 loss of business; or
188.8.131.52 depletion of goodwill and/or similar losses; or
184.108.40.206 loss of anticipated savings; or
220.127.116.11 loss of goods; or
18.104.22.168 loss of contracts; or
22.214.171.124 loss of use; or
126.96.36.199 loss of corruption of data or information; or
188.8.131.52 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.4.2 Joogleberry’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the amount of Fees paid for the Services as detailed in the Booking Confirmation form.
10.1 Subject to Clause 10.3, this Agreement shall terminate automatically on completion of the provision of the Services in accordance with this Agreement.
10.2 Without prejudice to any other rights or remedies which the parties may have and in particular (but without limiting the foregoing) to the cancellation provisions highlighted in Clause 6 and the force majeure provisions in Clause 11, either party may terminate this Agreement without liability to the other immediately on giving notice to the other if:
10.2.1 the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
10.2.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
10.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
10.2.4 a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
10.2.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
10.2.6 the other party ceases, or threatens to cease, to trade; or
10.2.7 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt
10.3 On termination of this Agreement for any reason:
10.3.1 the Client shall immediately pay to Joogleberry all of Joogleberry’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Joogleberry may submit an invoice, which shall be payable immediately on receipt;
10.3.2 the Client shall, within a reasonable time, return all of Joogleberry’s Equipment and materials. If the Client fails to do so, then Joogleberry may enter the Client’s premises (or other premises where the Event was due to take place) and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping; and
10.3.3 the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11 FORCE MAJEURE
Joogleberry shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (but not limited to) strikes, lock-outs or other industrial disputes (whether involving the workforce of Joogleberry or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or adverse weather conditions (“Force Majeure Event”), or delay or non-performance of Joogleberry’s sub-contractors due to a Force Majeure Event.
12.1 Subject to Clause 6, no variation of this Agreement or the terms and conditions of this Agreement shall be valid unless it is in writing and agreed by or on behalf of each of the parties by its authorised representatives.
12.2 This Agreement, together with any documents, policies or other terms referred to in it, constitutes the whole agreement between the parties relating to its subject matter and supersedes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter.
12.3 Joogleberry has the right to revise and amend the terms and conditions of this Agreement from time to time to reflect changes in market conditions affecting its business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements, changes in its system’s capabilities or obligations to other third parties, or for any other reason. The Client will be subject to the policies and terms and conditions of the Agreement in force at the time that the Client makes a Booking with Joogleberry, unless any change to those policies or the terms and conditions of this Agreement is required to be made by law or government authority (in which case it will apply to the Client’s Booking as from the date of such change), or if Joogleberry notifies the Client of the change to those policies or the terms and conditions of this Agreement before the Client makes another Booking with Joogleberry (in which case, Joogleberry has the right to assume that the Client has accepted the change to the revised terms and conditions of the Agreement, unless the Client notifies Joogleberry to the contrary within seven (7) working days of such Booking).
12.4 If any provision of this Agreement is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Agreement in that jurisdiction shall not be affected and the legality, validity and enforceability of the whole of this Agreement shall not be affected in any other jurisdiction.
12.5 No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.
12.6 No failure to exercise, nor any delay in the exercise, by either party to this Agreement of any right, power, privilege or remedy under this Agreement shall impair, or operate as a waiver of, such right, power, privilege or remedy.
12.7 Nothing in this Agreement shall constitute, or be deemed to constitute, a partnership or joint venture between the parties nor shall it constitute, or be deemed to constitute, any party as the agent of any other party for any purpose.
12.8 This Agreement shall be governed by, and construed in accordance with, English law and each of the parties irrevocably submits to the exclusive jurisdiction of the English courts.