TERMS
BUILDING MOMENTS THAT MOVE, ACROSS UNLIMITED FORMATS.
OUR SERVICES
HYPERCURATE® shall provide the Services substantially in accordance with the Specification and shall use reasonable endeavours to meet estimated dates, provided that time for performance is not of the essence. HYPERCURATE® shall perform the Services with reasonable care, skill and diligence expected of a specialist provider of similar services, deploy suitably qualified and experienced personnel, contractors and specialist partners as it reasonably considers appropriate, comply with the Client’s reasonable health and safety requirements while on a Client-controlled site where properly communicated in advance, remain responsible for subcontracted elements of the Services, and obtain those licences, permissions and consents which the Specification expressly allocates to HYPERCURATE®.
CLIENT RESPONSIBILITIES
The Client shall provide timely decisions, approvals, content, access, information, rights, licences, stakeholders and other dependencies required for the Services. The Client shall ensure that all Client Materials are accurate, complete, lawful and do not infringe third-party rights. The Client shall take reasonable care of Provider Equipment while on sites controlled by the Client and ensure that any structure, venue, utility, support service, network or hardware supplied by the Client is safe, suitable and compliant with H&S Legislation. The Client shall obtain, at its own cost, any permissions, licences or consents expressly allocated to it in the Specification and shall not do anything which materially delays or obstructs the Services.
CLIENT DELAY + DEFAULT
If HYPERCURATE®’s performance is prevented or delayed by a Client Default, HYPERCURATE® may suspend performance, extend time for delivery, issue a variation, and recover any resulting additional cost. HYPERCURATE® shall not be liable for resulting delay or non-performance to the extent caused by the Client Default.
FEES + PAYMENT
HYPERCURATE® shall invoice the Charges in accordance with the Specification, including any mobilisation fees, deposits, staged invoices or final invoices. Unless a shorter period is stated in the Specification, invoices are payable within 30 days of issue. All Charges are EXclusive of VAT and any applicable taxes or duties. The Client shall pay all invoices in full without set-off, deduction, withholding or counterclaim except where required by law. HYPERCURATE® retains ownership of Work Product and may suspend delivery or release of final files until all due Charges have been paid in full.
CHANGES TO SCOPE
Either party may request a change to the Services, timing, assumptions, dependencies or deliverables. No change takes effect unless agreed in writing by both parties. Where a requested change or project circumstance affects the scope, timing or cost of the Services, HYPERCURATE® may issue a revised fee, revised schedule or change note.
TERMINATION
Either party may terminate the Contract immediately by written notice if the other commits a material breach which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice. Either party may also terminate immediately if the other becomes insolvent or takes any formal step toward insolvency. Either party may terminate for convenience by giving at least 7 days’ written notice unless a different notice period or cancellation position is stated in the Specification. On a convenience termination by the Client, or on termination caused by a Client breach, the Client shall pay for all Services performed up to the termination date together with all committed third-party costs, non-cancellable bookings and reasonable demobilisation costs.
TERMINATION
Either party may terminate the Contract immediately by written notice if the other commits a material breach which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice. Either party may also terminate immediately if the other becomes insolvent or takes any formal step toward insolvency. Either party may terminate for convenience by giving at least 7 days’ written notice unless a different notice period or cancellation position is stated in the Specification. On a convenience termination by the Client, or on termination caused by a Client breach, the Client shall pay for all Services performed up to the termination date together with all committed third-party costs, non-cancellable bookings and reasonable demobilisation costs.
TERMINATION
Either party may terminate the Contract immediately by written notice if the other commits a material breach which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice. Either party may also terminate immediately if the other becomes insolvent or takes any formal step toward insolvency. Either party may terminate for convenience by giving at least 7 days’ written notice unless a different notice period or cancellation position is stated in the Specification. On a convenience termination by the Client, or on termination caused by a Client breach, the Client shall pay for all Services performed up to the termination date together with all committed third-party costs, non-cancellable bookings and reasonable demobilisation costs.
TERMINATION
Either party may terminate the Contract immediately by written notice if the other commits a material breach which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice. Either party may also terminate immediately if the other becomes insolvent or takes any formal step toward insolvency. Either party may terminate for convenience by giving at least 7 days’ written notice unless a different notice period or cancellation position is stated in the Specification. On a convenience termination by the Client, or on termination caused by a Client breach, the Client shall pay for all Services performed up to the termination date together with all committed third-party costs, non-cancellable bookings and reasonable demobilisation costs.
ON TERMINATION
On termination or expiry of the Contract, the Client shall immediately pay all outstanding invoices and any properly due sums not yet invoiced, and shall return all Provider Equipment on request and remain responsible for its safekeeping until returned. HYPERCURATE® shall, on request and subject to payment of all sums due, return any unused Client Materials then in its possession. Termination shall not affect any accrued rights, remedies, obligations or liabilities.
FORCE MAJEURE
Neither party shall be in breach of the Contract, nor liable for delay or failure in performance, where this results from circumstances beyond its reasonable control, including acts of God, flood, fire, epidemic or pandemic, war, terrorism, civil disorder, governmental action, utility failures, building collapse, labour disputes, transport disruption, supplier failure or other force majeure events. Adverse weather may affect outdoor or site-based projects. If adverse weather is reasonably expected to impact delivery, the parties shall discuss appropriate mitigation, and any agreed mitigation measures may be treated as a variation. A force majeure event does not relieve the Client of its obligation to pay for Services already performed or third-party costs already committed on its behalf.
INTELLECTUAL PROPERTY
All Client Background IPR remains vested in the Client or its licensors. The Client grants HYPERCURATE® a non-exclusive, royalty-free licence to use the Client Background IPR solely as necessary to perform the Services. All Provider Background IPR remains vested in HYPERCURATE® or its licensors. Third Party IPR remains owned by the relevant third party and is subject to the applicable third-party licence terms. HYPERCURATE® shall notify the Client where material Third Party Materials are used and any known use restrictions that apply. Subject to full payment of all Charges, Intellectual Property Rights in Work Product that is created specifically for the Client and is expressly identified as a deliverable shall vest in the Client upon creation or, if needed, shall be assigned to the Client on request. To the extent any Work Product incorporates Provider Background IPR, HYPERCURATE® grants the Client a non-exclusive, worldwide, perpetual, royalty-free licence to use that Provider Background IPR solely as required to use, exploit and enjoy the Work Product for the Client’s business purposes. HYPERCURATE® may use general know-how, methods, tools, techniques, frameworks and non-confidential learnings developed or applied in the course of the Services, provided that it does not disclose the Client’s Confidential Information.
CONFIDENTIALITY
Each party shall keep confidential all confidential information of the other party and shall not use it except for the purpose of exercising rights or performing obligations under the Contract. Each party may disclose confidential information to those of its employees, officers, advisers, contractors or specialist partners who need to know it for the Contract, provided they are bound by appropriate confidentiality obligations. These obligations do not apply to information that is public other than through breach, was lawfully known before disclosure, is lawfully received without restriction from a third party, or must be disclosed by law or competent authority. HYPERCURATE® may identify the Client relationship in credentials, proposals or marketing materials only where the Client has given prior written approval or where the existence of the project has already been made public by the Client.
DATA PROTECTION
Each party shall comply with Applicable Data Protection Laws. Where HYPERCURATE® processes Client Personal Data as processor, it shall process that data only on the Client’s documented instructions, implement appropriate technical and organisational security measures, ensure confidentiality, notify the Client without undue delay of any personal data breach affecting Client Personal Data, and provide reasonable assistance required by law, in each case to the extent proportionate to the Services and at the Client’s reasonable cost where the request is materially outside scope. The Client warrants that it has all necessary rights, notices and lawful bases to provide Client Personal Data to HYPERCURATE® and to permit HYPERCURATE® to process it for the Services. HYPERCURATE® may appoint sub-processors and transfer Client Personal Data where reasonably necessary for the Services, provided appropriate contractual and legal safeguards are in place.
WARRANTIES
Each party warrants that it has authority to enter into and perform the Contract. HYPERCURATE® warrants that the Services will be supplied with reasonable care and skill and materially in accordance with the Specification. Except as expressly stated in the Contract, all warranties, representations, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
LIABILITY
The limits and exclusions in this section reflect the insurance cover HYPERCURATE® has been able to arrange. References to liability include liability in contract, tort including negligence, misrepresentation, restitution or otherwise. Nothing in the Contract limits or excludes liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other liability that cannot lawfully be limited or excluded. Nothing in the Contract limits the Client’s obligation to pay the Charges. Subject to those carve-outs, HYPERCURATE®’s total aggregate liability arising out of or in connection with the Contract shall not exceed the total Charges paid or payable under the relevant Contract. Subject to the same carve-outs, HYPERCURATE® shall not be liable for any loss of profit, loss of sales, loss of business, loss of opportunity, loss of anticipated savings, loss of data, loss of goodwill, reputational damage, or any indirect or consequential loss. HYPERCURATE® shall have no liability in respect of any claim unless the Client gives written notice of the claim, with reasonable details, within 3 months after the date the Client became or ought reasonably to have become aware of the relevant circumstances.
INSURANCE
HYPERCURATE® shall maintain such insurance as it reasonably considers appropriate for its business and the Services, subject always to market availability and commercial reasonableness. The Client is responsible for arranging its own insurance for risks, values or exposures that exceed HYPERCURATE®’s insurance cover.
COMMUNICATIONS
Any notice under the Contract shall be in writing and delivered by hand, pre-paid first-class post or email to the address stated in the Order Confirmation, Statement of Work or other agreed written contact details. Notices are deemed received: if delivered by hand, when left at the proper address; if sent by post, at 9.00am on the second Business Day after posting; and if sent by email, at the time of transmission or, if outside Business Hours, when Business Hours next begin.
ASSIGNMENT + CONTRACTING
The Client may not assign, transfer, charge, subcontract or otherwise deal with any of its rights or obligations under the Contract without HYPERCURATE®’s prior written consent. HYPERCURATE® may assign or subcontract any part of the Contract, provided it remains responsible for performance of the Services.
GENERAL TERMS
If any provision of the Contract is found invalid, illegal or unenforceable, it shall be deemed modified or deleted to the minimum extent necessary, and the remaining provisions shall remain in full force and effect. No failure or delay by either party to exercise any right or remedy shall constitute a waiver of that or any other right or remedy. The rights and remedies in the Contract are cumulative and do not exclude any rights or remedies provided by law. Nothing in the Contract creates a partnership, joint venture or agency relationship between the parties, and neither party has authority to bind the other. Except as expressly stated, no person who is not a party to the Contract shall have any right to enforce any term of the Contract under the Contracts (Rights of Third Parties) Act 1999. No variation of the Contract is effective unless in writing and signed by the parties or their authorised representatives. The Contract constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior discussions, negotiations, representations and arrangements relating to that subject matter. Each party acknowledges that it has not relied on any statement, representation, assurance or warranty that is not expressly set out in the Contract.
GOVERNING LAW
The Contract and any dispute or claim arising out of or in connection with it shall be governed by the laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction.
DEFINITIONS
Applicable Laws means all laws, statutes, regulations, regulatory requirements and binding codes in force from time to time.
Applicable Data Protection Laws means, as applicable, the UK GDPR, the Data Protection Act 2018 and any other law in force in the United Kingdom relating to the processing of personal data.
Business Day means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours means 9.00am to 6.00pm on any Business Day.
Charges means the fees, costs and expenses payable by the Client for the Services, as set out in the Specification, proposal, quote, Order Confirmation or Statement of Work.
Client means the person, business or entity purchasing the Services from HYPERCURATE®.
Client Background IPR means all Intellectual Property Rights owned by or licensed to the Client independently of the Contract, excluding Provider Background IPR and Third Party IPR.
Client Default means any act, omission, delay, failure to approve, failure to provide information, materials, rights, access or assistance, or any other default by the Client that prevents or delays HYPERCURATE® from performing the Services.
Client Materials means all documents, brand assets, content, information, data, files and other materials supplied by or on behalf of the Client in connection with the Services.
Client Personal Data means any personal data processed by HYPERCURATE® on behalf of the Client as processor under the Contract.
Commencement Date means the date stated in the Order Confirmation, Statement of Work or other written acceptance, or, if earlier, the date HYPERCURATE® first starts providing the Services.
Conditions means these terms and conditions as amended in accordance with clause 23.
Contract means the agreement between the Client and Hypercurated LTD trading as HYPERCURATE® for the supply of Services, incorporating these Conditions, the Specification and any applicable Order Confirmation or SOW.
Effective Date means the date stated in the Specification or, if none is stated, the date the Contract comes into force.
Foreground IPR means Intellectual Property Rights created by HYPERCURATE® in the course of performing the Services, excluding Provider Background IPR, Client Background IPR and Third Party IPR.
Health and Safety means the health and safety of any person affected by the Services or by activities connected with the Services.
H&S Legislation means the Health and Safety at Work etc. Act 1974 and all other applicable laws, regulations, codes and guidance relating to health and safety.
Intellectual Property Rights / IPR means all intellectual property rights anywhere in the world, whether registered or unregistered, including copyright, database rights, design rights, trade marks, service marks, patents, domain names, rights in software, moral rights, rights in confidential information, know-how and trade secrets, and all applications for and rights to apply for them.
Order means the Client’s order, booking, instruction or request for Services.
Order Confirmation means HYPERCURATE®’s written confirmation accepting the Order.
Provider Background IPR means all Intellectual Property Rights owned by or licensed to HYPERCURATE® or developed by it independently of the Contract.
Provider Equipment means any equipment, systems, software, hardware, tools, cabling, facilities or other assets supplied or used by HYPERCURATE® in connection with the Services.
Services means the services supplied by HYPERCURATE® as described in the Specification.
Specification means the description of the Services, deliverables, dates, assumptions, fees and payment terms set out in the proposal, Order Confirmation, SOW, schedule or similar agreed document.
Third Party Materials means software, stock imagery, 3D models, footage, music, fonts, plugins or other third-party assets used in the Services.
Third Party IPR means the Intellectual Property Rights in Third Party Materials.
VAT means value added tax or any equivalent tax chargeable in the United Kingdom or elsewhere.
Work Product means any deliverables, outputs, materials, designs, files, software, visuals, models, presentations, documents, data or other materials supplied by HYPERCURATE® to the Client in relation to the Services, excluding Provider Equipment.
Headings do not affect interpretation. References to statutes include amendments and subordinate legislation. Words in the singular include the plural and vice versa. References to writing include email.
TERMS
BUILDING MOMENTS THAT MOVE, ACROSS UNLIMITED FORMATS.
OUR SERVICES
HYPERCURATE® shall provide the Services substantially in accordance with the Specification and shall use reasonable endeavours to meet estimated dates, provided that time for performance is not of the essence. HYPERCURATE® shall perform the Services with reasonable care, skill and diligence expected of a specialist provider of similar services, deploy suitably qualified and experienced personnel, contractors and specialist partners as it reasonably considers appropriate, comply with the Client’s reasonable health and safety requirements while on a Client-controlled site where properly communicated in advance, remain responsible for subcontracted elements of the Services, and obtain those licences, permissions and consents which the Specification expressly allocates to HYPERCURATE®.
CLIENT RESPONSIBILITIES
The Client shall provide timely decisions, approvals, content, access, information, rights, licences, stakeholders and other dependencies required for the Services. The Client shall ensure that all Client Materials are accurate, complete, lawful and do not infringe third-party rights. The Client shall take reasonable care of Provider Equipment while on sites controlled by the Client and ensure that any structure, venue, utility, support service, network or hardware supplied by the Client is safe, suitable and compliant with H&S Legislation. The Client shall obtain, at its own cost, any permissions, licences or consents expressly allocated to it in the Specification and shall not do anything which materially delays or obstructs the Services.
CLIENT DELAY + DEFAULT
If HYPERCURATE®’s performance is prevented or delayed by a Client Default, HYPERCURATE® may suspend performance, extend time for delivery, issue a variation, and recover any resulting additional cost. HYPERCURATE® shall not be liable for resulting delay or non-performance to the extent caused by the Client Default.
FEES + PAYMENT
HYPERCURATE® shall invoice the Charges in accordance with the Specification, including any mobilisation fees, deposits, staged invoices or final invoices. Unless a shorter period is stated in the Specification, invoices are payable within 30 days of issue. All Charges are EXclusive of VAT and any applicable taxes or duties. The Client shall pay all invoices in full without set-off, deduction, withholding or counterclaim except where required by law. HYPERCURATE® retains ownership of Work Product and may suspend delivery or release of final files until all due Charges have been paid in full.
CHANGES TO SCOPE
Either party may request a change to the Services, timing, assumptions, dependencies or deliverables. No change takes effect unless agreed in writing by both parties. Where a requested change or project circumstance affects the scope, timing or cost of the Services, HYPERCURATE® may issue a revised fee, revised schedule or change note.
TERMINATION
Either party may terminate the Contract immediately by written notice if the other commits a material breach which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice. Either party may also terminate immediately if the other becomes insolvent or takes any formal step toward insolvency. Either party may terminate for convenience by giving at least 7 days’ written notice unless a different notice period or cancellation position is stated in the Specification. On a convenience termination by the Client, or on termination caused by a Client breach, the Client shall pay for all Services performed up to the termination date together with all committed third-party costs, non-cancellable bookings and reasonable demobilisation costs.
TERMINATION
Either party may terminate the Contract immediately by written notice if the other commits a material breach which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice. Either party may also terminate immediately if the other becomes insolvent or takes any formal step toward insolvency. Either party may terminate for convenience by giving at least 7 days’ written notice unless a different notice period or cancellation position is stated in the Specification. On a convenience termination by the Client, or on termination caused by a Client breach, the Client shall pay for all Services performed up to the termination date together with all committed third-party costs, non-cancellable bookings and reasonable demobilisation costs.
TERMINATION
Either party may terminate the Contract immediately by written notice if the other commits a material breach which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice. Either party may also terminate immediately if the other becomes insolvent or takes any formal step toward insolvency. Either party may terminate for convenience by giving at least 7 days’ written notice unless a different notice period or cancellation position is stated in the Specification. On a convenience termination by the Client, or on termination caused by a Client breach, the Client shall pay for all Services performed up to the termination date together with all committed third-party costs, non-cancellable bookings and reasonable demobilisation costs.
TERMINATION
Either party may terminate the Contract immediately by written notice if the other commits a material breach which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice. Either party may also terminate immediately if the other becomes insolvent or takes any formal step toward insolvency. Either party may terminate for convenience by giving at least 7 days’ written notice unless a different notice period or cancellation position is stated in the Specification. On a convenience termination by the Client, or on termination caused by a Client breach, the Client shall pay for all Services performed up to the termination date together with all committed third-party costs, non-cancellable bookings and reasonable demobilisation costs.
ON TERMINATION
On termination or expiry of the Contract, the Client shall immediately pay all outstanding invoices and any properly due sums not yet invoiced, and shall return all Provider Equipment on request and remain responsible for its safekeeping until returned. HYPERCURATE® shall, on request and subject to payment of all sums due, return any unused Client Materials then in its possession. Termination shall not affect any accrued rights, remedies, obligations or liabilities.
FORCE MAJEURE
Neither party shall be in breach of the Contract, nor liable for delay or failure in performance, where this results from circumstances beyond its reasonable control, including acts of God, flood, fire, epidemic or pandemic, war, terrorism, civil disorder, governmental action, utility failures, building collapse, labour disputes, transport disruption, supplier failure or other force majeure events. Adverse weather may affect outdoor or site-based projects. If adverse weather is reasonably expected to impact delivery, the parties shall discuss appropriate mitigation, and any agreed mitigation measures may be treated as a variation. A force majeure event does not relieve the Client of its obligation to pay for Services already performed or third-party costs already committed on its behalf.
INTELLECTUAL PROPERTY
All Client Background IPR remains vested in the Client or its licensors. The Client grants HYPERCURATE® a non-exclusive, royalty-free licence to use the Client Background IPR solely as necessary to perform the Services. All Provider Background IPR remains vested in HYPERCURATE® or its licensors. Third Party IPR remains owned by the relevant third party and is subject to the applicable third-party licence terms. HYPERCURATE® shall notify the Client where material Third Party Materials are used and any known use restrictions that apply. Subject to full payment of all Charges, Intellectual Property Rights in Work Product that is created specifically for the Client and is expressly identified as a deliverable shall vest in the Client upon creation or, if needed, shall be assigned to the Client on request. To the extent any Work Product incorporates Provider Background IPR, HYPERCURATE® grants the Client a non-exclusive, worldwide, perpetual, royalty-free licence to use that Provider Background IPR solely as required to use, exploit and enjoy the Work Product for the Client’s business purposes. HYPERCURATE® may use general know-how, methods, tools, techniques, frameworks and non-confidential learnings developed or applied in the course of the Services, provided that it does not disclose the Client’s Confidential Information.
CONFIDENTIALITY
Each party shall keep confidential all confidential information of the other party and shall not use it except for the purpose of exercising rights or performing obligations under the Contract. Each party may disclose confidential information to those of its employees, officers, advisers, contractors or specialist partners who need to know it for the Contract, provided they are bound by appropriate confidentiality obligations. These obligations do not apply to information that is public other than through breach, was lawfully known before disclosure, is lawfully received without restriction from a third party, or must be disclosed by law or competent authority. HYPERCURATE® may identify the Client relationship in credentials, proposals or marketing materials only where the Client has given prior written approval or where the existence of the project has already been made public by the Client.
DATA PROTECTION
Each party shall comply with Applicable Data Protection Laws. Where HYPERCURATE® processes Client Personal Data as processor, it shall process that data only on the Client’s documented instructions, implement appropriate technical and organisational security measures, ensure confidentiality, notify the Client without undue delay of any personal data breach affecting Client Personal Data, and provide reasonable assistance required by law, in each case to the extent proportionate to the Services and at the Client’s reasonable cost where the request is materially outside scope. The Client warrants that it has all necessary rights, notices and lawful bases to provide Client Personal Data to HYPERCURATE® and to permit HYPERCURATE® to process it for the Services. HYPERCURATE® may appoint sub-processors and transfer Client Personal Data where reasonably necessary for the Services, provided appropriate contractual and legal safeguards are in place.
WARRANTIES
Each party warrants that it has authority to enter into and perform the Contract. HYPERCURATE® warrants that the Services will be supplied with reasonable care and skill and materially in accordance with the Specification. Except as expressly stated in the Contract, all warranties, representations, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
LIABILITY
The limits and exclusions in this section reflect the insurance cover HYPERCURATE® has been able to arrange. References to liability include liability in contract, tort including negligence, misrepresentation, restitution or otherwise. Nothing in the Contract limits or excludes liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other liability that cannot lawfully be limited or excluded. Nothing in the Contract limits the Client’s obligation to pay the Charges. Subject to those carve-outs, HYPERCURATE®’s total aggregate liability arising out of or in connection with the Contract shall not exceed the total Charges paid or payable under the relevant Contract. Subject to the same carve-outs, HYPERCURATE® shall not be liable for any loss of profit, loss of sales, loss of business, loss of opportunity, loss of anticipated savings, loss of data, loss of goodwill, reputational damage, or any indirect or consequential loss. HYPERCURATE® shall have no liability in respect of any claim unless the Client gives written notice of the claim, with reasonable details, within 3 months after the date the Client became or ought reasonably to have become aware of the relevant circumstances.
INSURANCE
HYPERCURATE® shall maintain such insurance as it reasonably considers appropriate for its business and the Services, subject always to market availability and commercial reasonableness. The Client is responsible for arranging its own insurance for risks, values or exposures that exceed HYPERCURATE®’s insurance cover.
COMMUNICATIONS
Any notice under the Contract shall be in writing and delivered by hand, pre-paid first-class post or email to the address stated in the Order Confirmation, Statement of Work or other agreed written contact details. Notices are deemed received: if delivered by hand, when left at the proper address; if sent by post, at 9.00am on the second Business Day after posting; and if sent by email, at the time of transmission or, if outside Business Hours, when Business Hours next begin.
ASSIGNMENT + CONTRACTING
The Client may not assign, transfer, charge, subcontract or otherwise deal with any of its rights or obligations under the Contract without HYPERCURATE®’s prior written consent. HYPERCURATE® may assign or subcontract any part of the Contract, provided it remains responsible for performance of the Services.
GENERAL TERMS
If any provision of the Contract is found invalid, illegal or unenforceable, it shall be deemed modified or deleted to the minimum extent necessary, and the remaining provisions shall remain in full force and effect. No failure or delay by either party to exercise any right or remedy shall constitute a waiver of that or any other right or remedy. The rights and remedies in the Contract are cumulative and do not exclude any rights or remedies provided by law. Nothing in the Contract creates a partnership, joint venture or agency relationship between the parties, and neither party has authority to bind the other. Except as expressly stated, no person who is not a party to the Contract shall have any right to enforce any term of the Contract under the Contracts (Rights of Third Parties) Act 1999. No variation of the Contract is effective unless in writing and signed by the parties or their authorised representatives. The Contract constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior discussions, negotiations, representations and arrangements relating to that subject matter. Each party acknowledges that it has not relied on any statement, representation, assurance or warranty that is not expressly set out in the Contract.
GOVERNING LAW
The Contract and any dispute or claim arising out of or in connection with it shall be governed by the laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction.
DEFINITIONS
Applicable Laws means all laws, statutes, regulations, regulatory requirements and binding codes in force from time to time.
Applicable Data Protection Laws means, as applicable, the UK GDPR, the Data Protection Act 2018 and any other law in force in the United Kingdom relating to the processing of personal data.
Business Day means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours means 9.00am to 6.00pm on any Business Day.
Charges means the fees, costs and expenses payable by the Client for the Services, as set out in the Specification, proposal, quote, Order Confirmation or Statement of Work.
Client means the person, business or entity purchasing the Services from HYPERCURATE®.
Client Background IPR means all Intellectual Property Rights owned by or licensed to the Client independently of the Contract, excluding Provider Background IPR and Third Party IPR.
Client Default means any act, omission, delay, failure to approve, failure to provide information, materials, rights, access or assistance, or any other default by the Client that prevents or delays HYPERCURATE® from performing the Services.
Client Materials means all documents, brand assets, content, information, data, files and other materials supplied by or on behalf of the Client in connection with the Services.
Client Personal Data means any personal data processed by HYPERCURATE® on behalf of the Client as processor under the Contract.
Commencement Date means the date stated in the Order Confirmation, Statement of Work or other written acceptance, or, if earlier, the date HYPERCURATE® first starts providing the Services.
Conditions means these terms and conditions as amended in accordance with clause 23.
Contract means the agreement between the Client and Hypercurated LTD trading as HYPERCURATE® for the supply of Services, incorporating these Conditions, the Specification and any applicable Order Confirmation or SOW.
Effective Date means the date stated in the Specification or, if none is stated, the date the Contract comes into force.
Foreground IPR means Intellectual Property Rights created by HYPERCURATE® in the course of performing the Services, excluding Provider Background IPR, Client Background IPR and Third Party IPR.
Health and Safety means the health and safety of any person affected by the Services or by activities connected with the Services.
H&S Legislation means the Health and Safety at Work etc. Act 1974 and all other applicable laws, regulations, codes and guidance relating to health and safety.
Intellectual Property Rights / IPR means all intellectual property rights anywhere in the world, whether registered or unregistered, including copyright, database rights, design rights, trade marks, service marks, patents, domain names, rights in software, moral rights, rights in confidential information, know-how and trade secrets, and all applications for and rights to apply for them.
Order means the Client’s order, booking, instruction or request for Services.
Order Confirmation means HYPERCURATE®’s written confirmation accepting the Order.
Provider Background IPR means all Intellectual Property Rights owned by or licensed to HYPERCURATE® or developed by it independently of the Contract.
Provider Equipment means any equipment, systems, software, hardware, tools, cabling, facilities or other assets supplied or used by HYPERCURATE® in connection with the Services.
Services means the services supplied by HYPERCURATE® as described in the Specification.
Specification means the description of the Services, deliverables, dates, assumptions, fees and payment terms set out in the proposal, Order Confirmation, SOW, schedule or similar agreed document.
Third Party Materials means software, stock imagery, 3D models, footage, music, fonts, plugins or other third-party assets used in the Services.
Third Party IPR means the Intellectual Property Rights in Third Party Materials.
VAT means value added tax or any equivalent tax chargeable in the United Kingdom or elsewhere.
Work Product means any deliverables, outputs, materials, designs, files, software, visuals, models, presentations, documents, data or other materials supplied by HYPERCURATE® to the Client in relation to the Services, excluding Provider Equipment.
Headings do not affect interpretation. References to statutes include amendments and subordinate legislation. Words in the singular include the plural and vice versa. References to writing include email.
TERMS
BUILDING MOMENTS THAT MOVE, ACROSS UNLIMITED FORMATS.
OUR SERVICES
HYPERCURATE® shall provide the Services substantially in accordance with the Specification and shall use reasonable endeavours to meet estimated dates, provided that time for performance is not of the essence. HYPERCURATE® shall perform the Services with reasonable care, skill and diligence expected of a specialist provider of similar services, deploy suitably qualified and experienced personnel, contractors and specialist partners as it reasonably considers appropriate, comply with the Client’s reasonable health and safety requirements while on a Client-controlled site where properly communicated in advance, remain responsible for subcontracted elements of the Services, and obtain those licences, permissions and consents which the Specification expressly allocates to HYPERCURATE®.
CLIENT RESPONSIBILITIES
The Client shall provide timely decisions, approvals, content, access, information, rights, licences, stakeholders and other dependencies required for the Services. The Client shall ensure that all Client Materials are accurate, complete, lawful and do not infringe third-party rights. The Client shall take reasonable care of Provider Equipment while on sites controlled by the Client and ensure that any structure, venue, utility, support service, network or hardware supplied by the Client is safe, suitable and compliant with H&S Legislation. The Client shall obtain, at its own cost, any permissions, licences or consents expressly allocated to it in the Specification and shall not do anything which materially delays or obstructs the Services.
CLIENT DELAY + DEFAULT
If HYPERCURATE®’s performance is prevented or delayed by a Client Default, HYPERCURATE® may suspend performance, extend time for delivery, issue a variation, and recover any resulting additional cost. HYPERCURATE® shall not be liable for resulting delay or non-performance to the extent caused by the Client Default.
FEES + PAYMENT
HYPERCURATE® shall invoice the Charges in accordance with the Specification, including any mobilisation fees, deposits, staged invoices or final invoices. Unless a shorter period is stated in the Specification, invoices are payable within 30 days of issue. All Charges are EXclusive of VAT and any applicable taxes or duties. The Client shall pay all invoices in full without set-off, deduction, withholding or counterclaim except where required by law. HYPERCURATE® retains ownership of Work Product and may suspend delivery or release of final files until all due Charges have been paid in full.
CHANGES TO SCOPE
Either party may request a change to the Services, timing, assumptions, dependencies or deliverables. No change takes effect unless agreed in writing by both parties. Where a requested change or project circumstance affects the scope, timing or cost of the Services, HYPERCURATE® may issue a revised fee, revised schedule or change note.
TERMINATION
Either party may terminate the Contract immediately by written notice if the other commits a material breach which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice. Either party may also terminate immediately if the other becomes insolvent or takes any formal step toward insolvency. Either party may terminate for convenience by giving at least 7 days’ written notice unless a different notice period or cancellation position is stated in the Specification. On a convenience termination by the Client, or on termination caused by a Client breach, the Client shall pay for all Services performed up to the termination date together with all committed third-party costs, non-cancellable bookings and reasonable demobilisation costs.
TERMINATION
Either party may terminate the Contract immediately by written notice if the other commits a material breach which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice. Either party may also terminate immediately if the other becomes insolvent or takes any formal step toward insolvency. Either party may terminate for convenience by giving at least 7 days’ written notice unless a different notice period or cancellation position is stated in the Specification. On a convenience termination by the Client, or on termination caused by a Client breach, the Client shall pay for all Services performed up to the termination date together with all committed third-party costs, non-cancellable bookings and reasonable demobilisation costs.
TERMINATION
Either party may terminate the Contract immediately by written notice if the other commits a material breach which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice. Either party may also terminate immediately if the other becomes insolvent or takes any formal step toward insolvency. Either party may terminate for convenience by giving at least 7 days’ written notice unless a different notice period or cancellation position is stated in the Specification. On a convenience termination by the Client, or on termination caused by a Client breach, the Client shall pay for all Services performed up to the termination date together with all committed third-party costs, non-cancellable bookings and reasonable demobilisation costs.
TERMINATION
Either party may terminate the Contract immediately by written notice if the other commits a material breach which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice. Either party may also terminate immediately if the other becomes insolvent or takes any formal step toward insolvency. Either party may terminate for convenience by giving at least 7 days’ written notice unless a different notice period or cancellation position is stated in the Specification. On a convenience termination by the Client, or on termination caused by a Client breach, the Client shall pay for all Services performed up to the termination date together with all committed third-party costs, non-cancellable bookings and reasonable demobilisation costs.
ON TERMINATION
On termination or expiry of the Contract, the Client shall immediately pay all outstanding invoices and any properly due sums not yet invoiced, and shall return all Provider Equipment on request and remain responsible for its safekeeping until returned. HYPERCURATE® shall, on request and subject to payment of all sums due, return any unused Client Materials then in its possession. Termination shall not affect any accrued rights, remedies, obligations or liabilities.
FORCE MAJEURE
Neither party shall be in breach of the Contract, nor liable for delay or failure in performance, where this results from circumstances beyond its reasonable control, including acts of God, flood, fire, epidemic or pandemic, war, terrorism, civil disorder, governmental action, utility failures, building collapse, labour disputes, transport disruption, supplier failure or other force majeure events. Adverse weather may affect outdoor or site-based projects. If adverse weather is reasonably expected to impact delivery, the parties shall discuss appropriate mitigation, and any agreed mitigation measures may be treated as a variation. A force majeure event does not relieve the Client of its obligation to pay for Services already performed or third-party costs already committed on its behalf.
INTELLECTUAL PROPERTY
All Client Background IPR remains vested in the Client or its licensors. The Client grants HYPERCURATE® a non-exclusive, royalty-free licence to use the Client Background IPR solely as necessary to perform the Services. All Provider Background IPR remains vested in HYPERCURATE® or its licensors. Third Party IPR remains owned by the relevant third party and is subject to the applicable third-party licence terms. HYPERCURATE® shall notify the Client where material Third Party Materials are used and any known use restrictions that apply. Subject to full payment of all Charges, Intellectual Property Rights in Work Product that is created specifically for the Client and is expressly identified as a deliverable shall vest in the Client upon creation or, if needed, shall be assigned to the Client on request. To the extent any Work Product incorporates Provider Background IPR, HYPERCURATE® grants the Client a non-exclusive, worldwide, perpetual, royalty-free licence to use that Provider Background IPR solely as required to use, exploit and enjoy the Work Product for the Client’s business purposes. HYPERCURATE® may use general know-how, methods, tools, techniques, frameworks and non-confidential learnings developed or applied in the course of the Services, provided that it does not disclose the Client’s Confidential Information.
CONFIDENTIALITY
Each party shall keep confidential all confidential information of the other party and shall not use it except for the purpose of exercising rights or performing obligations under the Contract. Each party may disclose confidential information to those of its employees, officers, advisers, contractors or specialist partners who need to know it for the Contract, provided they are bound by appropriate confidentiality obligations. These obligations do not apply to information that is public other than through breach, was lawfully known before disclosure, is lawfully received without restriction from a third party, or must be disclosed by law or competent authority. HYPERCURATE® may identify the Client relationship in credentials, proposals or marketing materials only where the Client has given prior written approval or where the existence of the project has already been made public by the Client.
DATA PROTECTION
Each party shall comply with Applicable Data Protection Laws. Where HYPERCURATE® processes Client Personal Data as processor, it shall process that data only on the Client’s documented instructions, implement appropriate technical and organisational security measures, ensure confidentiality, notify the Client without undue delay of any personal data breach affecting Client Personal Data, and provide reasonable assistance required by law, in each case to the extent proportionate to the Services and at the Client’s reasonable cost where the request is materially outside scope. The Client warrants that it has all necessary rights, notices and lawful bases to provide Client Personal Data to HYPERCURATE® and to permit HYPERCURATE® to process it for the Services. HYPERCURATE® may appoint sub-processors and transfer Client Personal Data where reasonably necessary for the Services, provided appropriate contractual and legal safeguards are in place.
WARRANTIES
Each party warrants that it has authority to enter into and perform the Contract. HYPERCURATE® warrants that the Services will be supplied with reasonable care and skill and materially in accordance with the Specification. Except as expressly stated in the Contract, all warranties, representations, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
LIABILITY
The limits and exclusions in this section reflect the insurance cover HYPERCURATE® has been able to arrange. References to liability include liability in contract, tort including negligence, misrepresentation, restitution or otherwise. Nothing in the Contract limits or excludes liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other liability that cannot lawfully be limited or excluded. Nothing in the Contract limits the Client’s obligation to pay the Charges. Subject to those carve-outs, HYPERCURATE®’s total aggregate liability arising out of or in connection with the Contract shall not exceed the total Charges paid or payable under the relevant Contract. Subject to the same carve-outs, HYPERCURATE® shall not be liable for any loss of profit, loss of sales, loss of business, loss of opportunity, loss of anticipated savings, loss of data, loss of goodwill, reputational damage, or any indirect or consequential loss. HYPERCURATE® shall have no liability in respect of any claim unless the Client gives written notice of the claim, with reasonable details, within 3 months after the date the Client became or ought reasonably to have become aware of the relevant circumstances.
INSURANCE
HYPERCURATE® shall maintain such insurance as it reasonably considers appropriate for its business and the Services, subject always to market availability and commercial reasonableness. The Client is responsible for arranging its own insurance for risks, values or exposures that exceed HYPERCURATE®’s insurance cover.
COMMUNICATIONS
Any notice under the Contract shall be in writing and delivered by hand, pre-paid first-class post or email to the address stated in the Order Confirmation, Statement of Work or other agreed written contact details. Notices are deemed received: if delivered by hand, when left at the proper address; if sent by post, at 9.00am on the second Business Day after posting; and if sent by email, at the time of transmission or, if outside Business Hours, when Business Hours next begin.
ASSIGNMENT + CONTRACTING
The Client may not assign, transfer, charge, subcontract or otherwise deal with any of its rights or obligations under the Contract without HYPERCURATE®’s prior written consent. HYPERCURATE® may assign or subcontract any part of the Contract, provided it remains responsible for performance of the Services.
GENERAL TERMS
If any provision of the Contract is found invalid, illegal or unenforceable, it shall be deemed modified or deleted to the minimum extent necessary, and the remaining provisions shall remain in full force and effect. No failure or delay by either party to exercise any right or remedy shall constitute a waiver of that or any other right or remedy. The rights and remedies in the Contract are cumulative and do not exclude any rights or remedies provided by law. Nothing in the Contract creates a partnership, joint venture or agency relationship between the parties, and neither party has authority to bind the other. Except as expressly stated, no person who is not a party to the Contract shall have any right to enforce any term of the Contract under the Contracts (Rights of Third Parties) Act 1999. No variation of the Contract is effective unless in writing and signed by the parties or their authorised representatives. The Contract constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior discussions, negotiations, representations and arrangements relating to that subject matter. Each party acknowledges that it has not relied on any statement, representation, assurance or warranty that is not expressly set out in the Contract.
GOVERNING LAW
The Contract and any dispute or claim arising out of or in connection with it shall be governed by the laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction.
DEFINITIONS
Applicable Laws means all laws, statutes, regulations, regulatory requirements and binding codes in force from time to time.
Applicable Data Protection Laws means, as applicable, the UK GDPR, the Data Protection Act 2018 and any other law in force in the United Kingdom relating to the processing of personal data.
Business Day means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours means 9.00am to 6.00pm on any Business Day.
Charges means the fees, costs and expenses payable by the Client for the Services, as set out in the Specification, proposal, quote, Order Confirmation or Statement of Work.
Client means the person, business or entity purchasing the Services from HYPERCURATE®.
Client Background IPR means all Intellectual Property Rights owned by or licensed to the Client independently of the Contract, excluding Provider Background IPR and Third Party IPR.
Client Default means any act, omission, delay, failure to approve, failure to provide information, materials, rights, access or assistance, or any other default by the Client that prevents or delays HYPERCURATE® from performing the Services.
Client Materials means all documents, brand assets, content, information, data, files and other materials supplied by or on behalf of the Client in connection with the Services.
Client Personal Data means any personal data processed by HYPERCURATE® on behalf of the Client as processor under the Contract.
Commencement Date means the date stated in the Order Confirmation, Statement of Work or other written acceptance, or, if earlier, the date HYPERCURATE® first starts providing the Services.
Conditions means these terms and conditions as amended in accordance with clause 23.
Contract means the agreement between the Client and Hypercurated LTD trading as HYPERCURATE® for the supply of Services, incorporating these Conditions, the Specification and any applicable Order Confirmation or SOW.
Effective Date means the date stated in the Specification or, if none is stated, the date the Contract comes into force.
Foreground IPR means Intellectual Property Rights created by HYPERCURATE® in the course of performing the Services, excluding Provider Background IPR, Client Background IPR and Third Party IPR.
Health and Safety means the health and safety of any person affected by the Services or by activities connected with the Services.
H&S Legislation means the Health and Safety at Work etc. Act 1974 and all other applicable laws, regulations, codes and guidance relating to health and safety.
Intellectual Property Rights / IPR means all intellectual property rights anywhere in the world, whether registered or unregistered, including copyright, database rights, design rights, trade marks, service marks, patents, domain names, rights in software, moral rights, rights in confidential information, know-how and trade secrets, and all applications for and rights to apply for them.
Order means the Client’s order, booking, instruction or request for Services.
Order Confirmation means HYPERCURATE®’s written confirmation accepting the Order.
Provider Background IPR means all Intellectual Property Rights owned by or licensed to HYPERCURATE® or developed by it independently of the Contract.
Provider Equipment means any equipment, systems, software, hardware, tools, cabling, facilities or other assets supplied or used by HYPERCURATE® in connection with the Services.
Services means the services supplied by HYPERCURATE® as described in the Specification.
Specification means the description of the Services, deliverables, dates, assumptions, fees and payment terms set out in the proposal, Order Confirmation, SOW, schedule or similar agreed document.
Third Party Materials means software, stock imagery, 3D models, footage, music, fonts, plugins or other third-party assets used in the Services.
Third Party IPR means the Intellectual Property Rights in Third Party Materials.
VAT means value added tax or any equivalent tax chargeable in the United Kingdom or elsewhere.
Work Product means any deliverables, outputs, materials, designs, files, software, visuals, models, presentations, documents, data or other materials supplied by HYPERCURATE® to the Client in relation to the Services, excluding Provider Equipment.
Headings do not affect interpretation. References to statutes include amendments and subordinate legislation. Words in the singular include the plural and vice versa. References to writing include email.