1.1. These terms and conditions shall apply to all contracts entered into by Toast (as hereinafter defined) and unless otherwise agreed by Toast in writing shall apply to all orders placed with Toast. No amendments to this Agreement shall be effective unless in writing signed by an authorized signatory on behalf of each party.
1.2. This agreement shall be governed by the laws of England & Wales and subject to the exclusive jurisdiction of the English Courts.
2. DEFINITIONS
2.1. In these Terms and Conditions :
2.2. “Toast” shall mean Toast TV Ltd of 27 Noel Street W1F 8GZ (Reg 4363440) and shall include any trading division operating from time to time, any subsidiary (as defined in the Companies Act 1985) or associated company of Toast and shall also include all its successors in title and assigns;
2.3. The “Contract” shall mean any order for goods or services placed by the Client and accepted by Toast, which order shall be deemed to include these Trading Terms and Conditions;
2.4. The “Client” shall mean the person, firm, company or other body by whom an order for the Goods or Services is given to Toast and shall include the Client’s successors in title and permitted assigns;
2.5. The “Client’s Materials” shall mean all goods or other matter or things whatsoever supplied by or on behalf of the Client to Toast;
2.6. The “Goods” shall mean any goods or film produced by Toast for the Client under the Contract;
2.7. The “Services” shall mean any services carried out by or on behalf of Toast under the Contract by any process of whatsoever nature; and
2.8. “Trading Terms and Conditions” shall mean these terms and conditions.
3. CANCELLATION
3.1. Any contract between Toast and The Client may only be cancelled or varied with the written consent of Toast and upon the terms of these conditions. The giving of Toast’s consent shall not in any way prejudice Toast’s right to recover from The Client full compensation for any loss or expense arising from such cancellation or variation.
3.2. If notwithstanding condition 3.1 and without prejudice to any other rights or remedies available to Toast, The Client shall give Toast notice of cancellation of an order which notice is received by Toast:
3.2.1. less than 24 hours prior to, as applicable, the date for performance or the commencement of performance or the date on which the applicable facilities were to be utilised by or on behalf of the Client (the “Contract Date”), Toast shall be entitled to charge the Client the full contract price or, if none is stated, the applicable amount under Toast’s rate card current at the Contract Date; and
3.2.2. less than five working days but more than 24 hours prior to the Contract Date, Toast shall be entitled to charge the Client one half of the contract price or, if none is stated, one half of the applicable amount under Toast’s rate card current at the Contract Date in each case reflecting the fact that Toast is unlikely to be able to secure an order for the facilities that had been allocated to the processing of The Client’s order from a third party within the time available.
4. RATES
4.1. If Toast gives an estimate, in writing, Toast will honour it, if an order based on such estimate is placed within 3 months. Any estimate given by Toast is subject to any conditions specified in the estimate.
4.2. All prices quoted are exclusive of VAT. Toast shall further be entitled to make an adjustment to the quoted price in the event that:
4.2.1. additional costs are incurred by Toast due to materials supplied by the Client or any third party being in the opinion of Toast, in any way defective, in an unsuitable format (or a different format to that which Toast is expecting to receive the same) or of unsuitable quality for normal processing; or
4.2.2. the information supplied by the Client or any third party in connection with its order does not provide a full and accurate indication of the work involved; or
4.2.3. additional costs are incurred by Toast, due to alterations by the Client or any third party in its requirements; or
4.2.4. additional costs are incurred by Toast due to exceptional circumstances outside the control of Toast, including currency fluctuations and changes in third party costs.
5. TERMS OF PAYMENT
5.1. Subject to condition 5.2 and unless otherwise agreed by Toast in writing all invoices rendered by Toast are payable within 30 days of the dates thereof.
5.2. Toast expressly reserves the right at its sole option to require payment by installments during the performance of the contract and/or payment of all amounts owing to Toast immediately prior to delivery or making goods available for collection.
5.3. The Client shall pay all amounts owing to Toast in full and shall not exercise any rights of set off or counterclaim against invoices submitted. Payment of all amounts shall only be made in the currency in which they are invoiced and shall not be subject to any deductions/charges whatsoever.
5.4. In the event of default in payment by the Client under any contract between the Client and Toast, Toast shall be entitled, without prejudice to any other right or remedy, to suspend any further performance of or deliveries under any contract or contracts between Toast and the Client without notice and to charge interest on any amount outstanding at the rate of 4% above the base rate of HSBC from time to time (accruing from day to day both before and after judgment), from the due date of payment to the actual date of payment.
5.5. Toast shall be entitled to a general lien on all Equipment and property owned by the Client in Toast’s possession (although the Client may have paid the sum in full) in satisfaction of the whole or part as the case may be of any overdue charges, fees and costs due to Toast in accordance with these Conditions. Toast shall be entitled to offset any sum or sums owing to it from the client against any sums owed to the Client by Toast.
6. DELIVERY
6.1. Toast shall be entitled to be reimbursed by the Client any costs of delivery of goods to the Client which Toast arranges.
6.2. If Toast arranges for delivery of any goods to the Client, the risk in such goods shall pass on delivery at the Client’s premises or to his order.
6.3. Unless otherwise agreed in writing, all times quoted for performance or delivery or availability for collection are given in good faith but are not guaranteed. Notwithstanding that The Toast and the Client may have agreed that time is of the essence, the time for performance or delivery or availability for collection shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Client. Alteration by the Client of its requirements may result in delay in performance, delivery or availability for collection.
6.4. If Toast and the Client shall agree that any goods shall be delivered electronically or via any form of telephony (“Direct Delivery”) the following provisions shall as applicable apply:
6.4.1. the Client acknowledges that Direct Delivery is not or may not be a completely secure medium of communication and that an unauthorised third party may intercept, tamper with or delete goods delivered by Direct Delivery and that Direct Delivery may involve reliance upon third party data carriers over which Toast has no control; and
6.4.2. Toast shall not be responsible for and shall have no liability to the Client or any third party for:
6.4.2.1. any delay to any Direct Delivery or any non receipt of any goods delivered by Direct Delivery;
6.4.2.2. any loss or damage that results from any person gaining unauthorised access to any Direct Delivery of any goods;
6.4.2.3. use or disclosure of any data obtained by any third party as a result of the same having gained unauthorised access to any Direct Delivery; and
6.4.2.4. any loss or damage resulting from any malfunction of or the introduction of any viruses, worms, logic bombs, time locks, time bombs, Trojan horses and/or bugs to any equipment and/or software used to effect and/or receive any Direct Delivery.
7. QUALITY OF WORK
7.1. Where the client supplied assets, the quality of the services is substantially dependent on the quality of the Client’s materials. Toast shall endeavor to achieve the highest possible standards of work subject to the quality of the Client’s material available, but it does not guarantee to produce any particular standard.
7.2. If the Client makes a complaint in writing within 10 days of the service being completed, and in the opinion of Toast there is a defect which is not attributable to any of the following:
7.2.1. Defects in or unsuitability of the Client’s materials;
7.2.2. The normal loss of quality arising out of any processing work;
7.2.3. Damage in transit.
7.2.4.Toast will repair or replace at its own expense any defective material supplied by Toast and if deemed necessary by Toast, will provide the services once more only in accordance with the terms of the original contract at no additional charge.
7.3 Toast reserves the right to sub-contract all or any of its obligations to provide services
8. FORCE MAJEURE
8.1. The Toast shall not be liable in any way for any loss or damage or injury of any kind, whether direct or indirect, or consequential or otherwise resulting from any circumstance whatsoever beyond the control of Toast including (but without prejudice to the generality of the foregoing) war, riots, civil commotion, strikes, lock-outs, fire, flood, explosions, requisitions and acts of God.
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