Terms and Conditions of Supply of Services (Jan 2022)
1. Definitions
“the Client” means the person who purchases the Services supplied by Racoon Media Services Ltd. and shall where relevant be deemed to include all of its offices, employees, sub-contractors and/or agents, engaged in any way in the Contract.
“Booking” means the hire of the Facility and/or the supply of the Services during the period of booking in accordance with the terms of the Contract.
“these Conditions” means these terms and conditions of supply of services as amended from time to time in accordance with clause 2.5.
“Charges” means the rates agreed and payable for the Services.
“Commencement Date” shall have the meaning given to it in clause 2.2 of these Conditions.
“Contract” means the contract between Racoon Media Services Ltd. and the Client for the supply of Services in accordance with and incorporating these Conditions.
“Deliverables” means the results of the Services supplied by Racoon Media Services Ltd. to the Client.
“Equipment” means any equipment and all articles, material, software hired out or supplied by Racoon Media Services Ltd. to the Client or any replacements, substitutes and all accessories and additions made thereto.
“Racoon” or “www.racoon.io” means Racoon Media Service Ltd. (company number 13123846) a company registered in England and Wales whose registered address is 14 Grosvenor Court, Foregate Street, Chester CH1 1HG.
“Facilities” means those parts of Racoon Media Services Ltd. premises made available to the Client pursuant to the Contract.
“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 getup, 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.
“Material(s)” means any good or material provided by the Client to Racoon Media Services Ltd. in connection with the Contract, including but without limitation, any tapes, computer discs, hard disks, drives and devices intended to store Recordings made by the Client as well the Recordings stored on such media.
“Order” the Client’s -request for Services as set out in the Client’s purchase order or the Client’s acceptance, whether in writing, which shall include email, of Racoon Media Services Ltd.’s quotation, which shall include the description and specification of the Services. The Client must ensure that the terms of its Order and any specifications are complete and accurate.
“Personnel” means the employees, agents, sub-contractors or other representatives of Racoon Media Services whose services are employed by the Client in conjunction with the Services.
“Recordings” means any recording made by or on behalf of or at the direction of the Client prior to or after the commencement of the Contract.
“Services” means the services to be supplied by Racoon Media Services Ltd. to the Client on and subject to these Conditions, in accordance with any Order accepted by Racoon Media Services Ltd., which shall include, without limitation the supply of the Deliverables, Equipment, Personnel and/or Facilities as applicable.
“Working Days” means Monday to Friday (inclusive) but excluding statutory public holidays.
2. Basis of the Contract
2.1 All Orders for Services shall be deemed to be an offer by the Client to purchase Services pursuant to these Conditions and will not be binding until accepted by Racoon Media Services Ltd..
2.2 No order placed by the Client shall be deemed to be accepted by Racoon Media Services Ltd. until confirmation is given by Racoon Media Services Ltd., or (if earlier) Racoon commences the services to the Client, at which point and on which date the Contract shall come into existence (“Commencement Date”). The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Racoon Media Services Ltd. which is not set out in the Contract.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 In the event of any conflict or inconsistency between the terms and conditions in the Order and these Conditions, these Conditions shall prevail to the extent of any conflict or inconsistency.
2.5 No variation of these Conditions will be binding unless agreed in writing between a director of Racoon Media Services Ltd. and the Client
3. The Services
3.1 Racoon Media Services Ltd. will supply the Services in all material respects in accordance with each Order accepted by Racoon Media Services Ltd..
3.2 Racoon Media Services Ltd. will use its reasonable endeavours to perform the Services and deliver the Deliverables by the dates agreed with the Client, however (except to the extent it has not used its reasonable endeavours) such dates shall be estimates only and Racoon Media Services Ltd. will not be in breach of these Conditions or liable to the Client under any Contract for any delay in providing the Services and/or Deliverables.
3.3 The Client acknowledges and agrees that the time for performance of the Services and/or delivery of the Deliverables shall in every case be dependent upon the prompt receipt of all necessary information, material, final instructions and/or approvals from the Client. Alteration by the Client of its requirements and/or failure by the Client to comply with its obligations under these Conditions may result in delay in performance of the Services and/or completion of the Deliverables, for which Racoon Media Services Ltd. shall bear no liability. If any such delays causes the Booking to overrun, then Racoon Media Services Ltd. may (but shall not be obliged) to allow the Booking to continue beyond the expiry of the Booking upon the same terms and conditions in the Contract and the Client shall be charged and shall pay for any additional time spent using the Facilities of Racoon Media Services Ltd.’s then standard charge out rates.
3.4 Racoon Media Services Ltd. warrants that the Services will be performed with all reasonable care and skill.
3.5 Except as provided in clauses 3.2 and 3.3, Racoon Media Services Ltd. makes no warranties in relation to its performance of its obligations hereunder and accordingly all terms, conditions, warranties, representations or guarantees that would otherwise have been implied or otherwise imported into these arrangements by statute, common law or custom are hereby expressly excluded to the fullest extent permitted by law.
4. Charges and payment
4.1 Unless otherwise agreed in writing by a director of Racoon Media Services Ltd. the Client shall pay to Racoon Media Services Ltd. the amount invoiced in accordance with the Order, or as otherwise agreed in writing by an authorised representative of Racoon Media Services Ltd. (without any withholding, deduction, counterclaim, retention or set off), together with any VAT due thereon, within 30 days of the date of the invoice.
For the avoidance of doubt, time of payment shall be of the essence.
4.2 The Client will also reimburse to Racoon Media Services Ltd. all travel and subsistence expenses incurred in providing the Services and any costs of shipment of the Deliverables.
4.3 With regard to any invoice issued in accordance with clause 4.1, the Client shall provide written notification to Racoon Media Services Ltd. of any dispute in relation to such invoice within 14 days of the date if invoice, otherwise the invoice shall be deemed to be acceptable by the client.
4.4 Without limiting any other right or remedy of Racoon Media Services Ltd., if Client fails to make payment of any amount due under the Contract by the due date for payment, Racoon Media Services Ltd. reserves the right to:
(a) withdraw any discounts or rebates that have been agreed between the parties in respect of the Contract or any other Contract between Racoon Media Services Ltd. and the Client; and/or (b) require immediate payment of all outstanding invoices rendered to the Client under the Contract or any other Contract between Racoon Media Services Ltd. and the Client; and/or (c) Racoon Media Services Ltd. shall be entitled to charge the Client interest on the overdue amount, at the rate of 4 per cent per annum over the base rate for the time being of Barclays Bank PLC calculated on a daily basis from the due date until the date of actual payment of the overdue amount is made, whether before or after judgement.
5. Client’s obligations
5.1 The Client warrants that it will:
(a) Provide on a timely and on-going basis all Materials and information in respect of which the Services are to be provided and which are reasonably required to execute the Contract, and will obtain such information, licences, input and approvals as are required to enable Racoon Media Services Ltd. to perform the Services;
(b) Obtain and pay for (or procuring that the same are obtained or paid for) any and all necessary authorities, licences and/or third party consents required to make or exploit the Materials, Equipment and venues it supplies in connection with the Services;
(c) Notify Racoon Media Services Ltd. of the identity of the Client’s representative who will be available at all reasonable times in connection with the Services and who will have authority to approve the results of the Services on behalf of the Client;
(d) Abide by Racoon Media Services Ltd.’s facility rules, regulations and health and safety policy and shall be responsible for the actions of any Client personnel upon Racoon Media Services Ltd.’s premises;
(e) Leave the Equipment and/or Facilities in a good condition; and
(f) At the end of the Booking, promptly vacate the Facilities and/or cease using the Equipment and/or Services and where applicable return the Equipment to Racoon Media Services Ltd..
(g) Where Racoon Media Services Ltd. provides services to the Client involving the creation, duplication, or manipulation of material, deliver the material to Racoon Media Services Ltd. and shall ensure that each item of material clearly identifies the Client and the content of the material. In the case of digital delivery, ensure that the source material is correctly addressed and the communication is virus free.
5.2 When accessing Racoon Media Services Ltd.’s website in connection with the subject matter of this Contract, the Client shall comply with Racoon Media Services Ltd.’s Website Terms of Use, which are hereby incorporated.
6. Intellectual Property
6.1 Ownership of the Intellectual Property Rights in any third party materials which form part of the Deliverables shall remain with that third party. The Client is granted a licence to use those Intellectual Property Rights on the terms on which that third party has granted a licence to Racoon. Where Racoon Media Services Ltd. provides services to the Client involving the creation, duplication or manipulation of material, the Client warrants that the provision of such services, or other use of the content, will not infringe on the Intellectual Property Rights of any third party.
6.2 The Intellectual Property Rights in any parts of the Deliverables which are specifically developed for the Client as part of the Services will vest in the Client and in each case on payment in full for the relevant Services Racoon Media Services Ltd. hereby automatically assigns such Intellectual Property Rights to the Client.
6.3 The Intellectual Property Rights in any materials owned by Racoon Media Services Ltd. prior to the date of the relevant Contract or developed independently by Racoon Media Services Ltd. of the Services (and all developments and modifications to such items) shall remain vested in Racoon Media Services Ltd.. Racoon Media Services Ltd. hereby grants to the Client a non-exclusive, royalty free licence to use, perform, display, copy, sub-licence and distribute such Intellectual Property Rights as part of the Deliverables.
6.4 Notwithstanding any other provision of these Conditions, the Client agrees that Racoon Media Services Ltd. shall be entitled to use any expertise, know-how, ideas, methods, processes or techniques used in the Deliverables for the purposes of Racoon Media Services Ltd.’s business from time to time.
7. Termination
7.1 If any confirmed Booking the subject of a Contract is cancelled by the Client, then without prejudice to Racoon Media Services Ltd.’s other rights and remedies available, Racoon Media Services Ltd. may charge the Client a cancellation fee, which will be the higher of:
(a) Racoon Media Services Ltd.’s costs and expenses incurred in relation to the Order or arising from the cancellation or variation; or
(b) 100% of the Charges that would have been due if the Services had been performed in accordance with the Contract, if notice of a cancellation is received by Racoon Media Services Ltd. less than two Working Days prior to the scheduled commencement date of the Services; or (c) 50% of the Charges that would have been due if the Services had been performed in accordance with the Contract if notice of the cancellation is received by Racoon Media Services Ltd. more than two Working Days but less than 5 Working Days prior to the scheduled commencement date of the Services.
7.3 Cancellations of any Bookings will only be effective if given in writing or by email by the Client.
7.4 Without prejudice to any other rights or remedies which Racoon Media Services Ltd. may have, Racoon Media Services Ltd. may cancel any Booking and/or terminate the Contract (whether or not any services in connection therewith have been provided by Racoon Media Services Ltd.) with immediate effect and without liability to the Client if:
(a) the Client is in breach of any of the terms of the Contract; or
(b) the Client fails to pay any charges, fees or costs due to Racoon Media Services Ltd. within 7 days of the same having become due; or
(c) the Client becomes insolvent or bankrupt, goes into administration or has a receiver appointed over any of its assets; or
(d) the Client suspends or ceases, or threatens to suspend or cease to carry on all or a substantial party of its business;
(e) Racoon Media Services Ltd. in its absolute discretion considers a Client’s Material(s) are or might be offensive or obscene or that copying or other reproduction thereof might infringe the rights of any third party or be otherwise illegal.
7.5 If any Booking is cancelled and/or the Contract terminated by Racoon Media Services Ltd. in the circumstances set out in clause 7.4 then, without prejudice to Racoon Media Services Ltd.’s other rights and remedies available at law or otherwise, Racoon Media Services Ltd. may charge the Client a cancellation fee in accordance with clause 7.l above.
7.6 The Client may cancel any Booking and/or terminate the applicable Contract with immediate effect in writing if Racoon Media Services Ltd. are in material breach of any of the terms of these Conditions and (if such a breach is remediable) fails to remedy the breach within 30 days of that party being notified in writing of the breach,
7.7 On termination of a Contract for any reason:
(a) the Client shall immediately pay to Racoon Media Services Ltd. all of Racoon Media Services Ltd.’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Racoon Media Services Ltd. may submit an invoice, which shall be payable immediately on receipt;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination;
(c) the Client shall arrange for the Materials to be removed in accordance with clause 8; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect, including the following clauses: clause 6 (Intellectual property rights), clause 8 (Removal of Material), clause 9 (Indemnity), clause 10 (Confidentiality), clause 11 (Risk and Liability), clause 14 (General).
8. Removal of Material
8.1 The Client shall, within twelve (12) months from, whichever is sooner (a) termination of a Contract for any reason, or (b) the issue by Racoon Media Services Ltd. of an invoice to the Client for the Services, remove all Material utilised in relation to that Contract or invoice.
8.2 If the Client fails to remove all, or any of the Material in accordance with clause
8.1, Racoon Media Services Ltd. shall at its own option either;
(a) return all such Material to the Client; or
(b) destroy or dispose of all Material, and Racoon Media Services Ltd. shall be entitled to charge the Client for all related delivery charges, costs, expenses and / or all other charges incurred in returning or destroying (as applicable) the Materials in accordance with this clause 8.2.
8.3 Racoon Media Services Ltd. shall store the Material until it is removed, returned, destroyed or disposed of in accordance with this clause 8 and Racoon Media Services Ltd. shall be entitled to charge the Client for all its reasonable related costs and expenses in doing so.
8.4 Except as set out in these Conditions, Racoon Media Services Ltd. shall have no liability to the Client or any other third party whatsoever for any loss or damage to the Material whilst in Racoon Media Services Ltd.’s possession (otherwise than in consequence of any negligence on the part of Racoon Media Services Ltd.), which shall be stored at the Client’s sole risk and Racoon Media Services Ltd. shall not be under any obligation to maintain insurance against any risks whilst the Material is in its possession. The Client shall therefore ensure that it takes out and maintains sufficient insurance against loss or damage of the Materials in the full replacement value thereof.
9. Indemnity
9.1 The Client undertakes to indemnify Racoon Media Services Ltd. and its Personnel and keep it indemnified fully at all times against all claims, demands, actions, proceedings, damages, losses, costs, expenses, fine and charges or other liabilities made against or incurred or suffered by Racoon Media Services Ltd. or its Personnel by reason of or in respect of:
(a) any breach by the Client of the terms of the Contract; or
(b) deficiencies in the Materials or data or the like supplied to Racoon Media Services Ltd. by the Client in connection with the Services; or
(c) which Racoon Media Services Ltd. may suffer as a result of a failure to obtain any licences, consents or permissions as required under clause 5 herein; or
(d) any infringement of any third party Intellectual Property Rights or any civil or criminal action or prosecution for defamation or obscenity or for any breach of confidence or misuse of any confidential information arising out of or in connection with the Services except to the extent any such liability is attributable to the negligent act or omission of Racoon Media Services Ltd. or its Personnel.
10. Confidentiality
10.1 Any information relating to either party and coming into the possession of the other party as a result of the operation of these Conditions or any Contract shall be treated as confidential and shall not be disclosed to any person other than employees (or in the case of Racoon Media Services Ltd., its subcontractors) of such other party requiring such information pursuant to these Conditions or any order without the prior written approval of the party to whom it relates (such approval not to be unreasonably withheld or delayed).
10.2 Nothing contained in these Conditions shall be construed to impose a confidentiality obligation in respect of any matter which is at the time of disclosure known to the public unless through the act or omission on the part of the non-disclosing party or which is required to be disclosed by any applicable law, court order or any governmental or regulatory authority.
11. Risk and Liability
11.1 Nothing in these Conditions limits any liability in respect of death or personal injury arising from the negligence or for the fraud or fraudulent misrepresentation of Racoon Media Services Ltd..
11.2 Subject only to clause 11.1 Racoon Media Services Ltd.’s aggregate liability to the Client whether in respect of negligence, breach of contract, tort, misrepresentation or otherwise for any loss or damage arising out of or in connection with the Contract shall be limited to £500,000 or twice the amount of the charges, fees and costs payable by the Client in accordance with the Order, whichever is the lower.
11.3 Subject only to clause 11.1, Racoon Media Services Ltd. shall not in any event be liable to the Client or any third party whether in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise, arising out of or in connection with any Contract for any:
(a) loss of profits, revenue or anticipated savings, loss of business or agreements or contracts, or for any increased costs or expenses
(b) loss or damage to goodwill;
(c) loss of use or corruption of software, data or information; or
(d) any indirect, consequential, incidental or special damages.
11.4 The Client shall be responsible for the quality and integrity of the Materials and risk in the content of such Materials (including without limitation any master Recordings) held by Racoon Media Services Ltd. for the Client will at all times remain with the Client. Where such Materials comprise Recordings, it is the responsibility of the Client to keep back-up copies of any such Recordings and to insure them where required and the Client acknowledges that Racoon Media Services Ltd.’s sole liability for any loss or damage to any of the ClientRecordings shall be limited to the replacement cost of the physical media on which the Recording is stored as if such media were blank and did not embody any Recording whatsoever. Racoon Media Services Ltd. reserves the right to charge for any Materials that it stores on behalf of the Client.
11.5 Upon delivery to the Client, its carrier, end user, agent or other representative shall sign for the Deliverables, or in the case of digital delivery, acknowledge the receipt of the Deliverables by email to Racoon Media Services Ltd. immediately upon request. In the event that the Client (or any carrier, agent or representative) is not available to provide a signature, Racoon may retain the Deliverables and reserve the right to charge the Client for any resultant delivery or storage charges.
11.6 Racoon Media Services Ltd. shall retain title to and legal and beneficial ownership of the Deliverables until the Charges for the Deliverables have been paid in full. Notwithstanding any other provision of the Contract, the Client hereby acknowledges and agrees that all risk in the Deliverables when in transit or otherwise off Racoon Media Services Ltd.’s premises shall vest in the Client.
11.7 Racoon shall be entitled to a general lien on any property owned by the Client left in Racoon’s possession (although the Client may have paid for the same in full) in satisfaction of the whole or part, as the case may be, of any overdue charges, fees and costs due. Racoon Media Services Ltd. shall be entitled to offset any sums owing to it from the Client against any sums owed to the Client by Racoon Media Services.
12. Assignment and Subcontracting
12.1 Racoon Media Services Ltd. may engage any person, firm or company as its sub- contractor to perform any of its obligations under these Conditions or any order but shall not be released from any liability therefor.
12.2 Each contract between Racoon Media Services Ltd. and the Client is personal to the Client who may not assign or transfer it without the prior written consent of a director of Racoon Media Services Ltd..
13. Force Majeure
13.1 Racoon Media Services Ltd. shall not be liable for any delay or failure to perform its obligations if that delay or failure is caused by circumstances beyond its reasonable control including but not limited to acts of God, war, industrial dispute, civil disturbance, strike, lock-outs, import or export embargo, accidents, fire, blockade, terrorism or threats of terrorist activity, flood, natural catastrophe, technical malfunctions or impossibility of or difficulty in obtaining source materials. Racoon Media Services Ltd. shall be entitled to a reasonable extension of time for the performance of such obligations.
14. General
14.1 These Conditions and the relevant Contract set out the entire agreement and understanding between the parties with respect to the subject matter of the Contract and supersedes any prior agreements, representations, understandings or arrangements (oral or written) in respect of the subject matter of each Contract between the parties.
14.2 The Client acknowledges that it has entered into each Contract in reliance only on the representations, warranties promises and terms contained in the Contract; and save as expressly set out in the Contract Racoon Media Services Ltd. shall have no liability in respect of any other representation, warranty or promise made prior to the date of the relevant Contract unless it was made fraudulently; and the only remedy available in respect of any misrepresentation, untrue statement made to the Client shall be a claim for breach of contract under the Contract.
14.3 To the extent that any provision of these Conditions or any Contract are found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of the contract between the parties, it shall not affect the enforceability of the remainder of the Contract between the parties nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
14.4 In the event of any dispute arising out of this agreement, the parties shall attempt to settle it by negotiation. To this end, they shall use their respective best endeavours to consult or negotiate with each other in good faith and, recognising their mutual interests, attempt to reach a just and equitable settlement satisfactory to both parties.
14.5 Any party may, in whole or in part, release, compound, compromise, waive or postpone, in its absolute discretion, any liability owed to it or right granted to it in these Conditions or any Contract by any other party or parties without in any way prejudicing or affecting its rights in respect of that or any other liability or right not so released, compounded, compromised, waived or postponed.
14.6 No single or partial exercise, or failure or delay in exercising any right, power or remedy by any party shall constitute a waiver by that party of, or impair or preclude any further exercise of, that or any right, power or remedy arising under these Conditions, any Contract or otherwise.
14.7 Racoon Media Services Ltd. may use the Clients’ name and brief details of the Services for the purposes of Racoon Media Services Ltd.’s advertising and promotion of its business. Following the broadcast or exhibition of the work resulting from the Services, Racoon Media Services Ltd. will have the right to use any part of the work solely for use in its corporate advertising and showreels.
14.8 Any notice to a party under these Conditions and any Contract shall be in writing signed by or on behalf of the party giving it and shall, unless delivered to a party personally, be left at, or sent by prepaid first class post or fax to that party’s business address or registered office and will be deemed to have been served at the time of delivery if
delivered personally or 48 hours after posting in the case of an address in the United Kingdom and 96 hours after posting for any other address
14.9 These Conditions and each Contract and any dispute or claim (whether contractual or non contractual) arising out of or in connection with a Contract, its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
14.10 Each of the parties irrevocably submits for all purposes in connection with these Conditions and each Contract to the exclusive jurisdiction of the courts of England and Wales which shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) arising out of or in cone connection with any Contract, its subject matter or formation.
14.11 In these Conditions, the headings are for convenience only and shall not affect the interpretation of these Conditions.
14.12 Unless expressly provided in these Conditions or any Contract no provision of these Conditions or any Contract is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
14.13 Nothing in these Conditions or any Contract is intended or shall operate to create a partnership or joint venture between the parties, or to authorise either party to act as agent for the other and neither party shall have authority to act in the name or on behalf of the other, or to enter into any commitment or make any representation or warranty or otherwise bind the other in anyway. At its own expense, each party shall, and shall use reasonable endeavours to procure that any necessary third party shall, execute such documents and do such acts and things as the other may reasonably require for the purpose of giving the other the full benefit of all provisions of these Conditions and any Contract.
Racoon Media Services Limited registered in England & Wales under the company registration number 13123846 Registered office address: 14 Grosvenor Court, Foregate Street, Chester, Cheshire, United Kingdom, CH1 1HG www.racoon.io
