1 Terms and conditions
The following terms and conditions apply to the Contract and to each future request for the supply of advertising services and/or materials received by the Agency from the Client from time to time unless otherwise agreed in writing except in relation to any agreement for the design of websites or the provision of Public Relations services by the Agency in respect of which separate terms will apply. The supply of the Deliverables shall be subject to these terms, which shall take precedence over any terms and conditions of the Client.
2 Definitions
In these terms and conditions the following words shall have the meanings given in this clause:
2.1 'Agency' means Lesniak Swann Limited, 3 Ridgehouse Drive, Festival Park, Stoke-on-Trent, ST1 5SJ registered in England number (4536491);
2.2 'Brief' means the written brief describing the Deliverables, and any pre-set timings for supply, provided by the Agency and agreed by the Client in advance of entering into the Contract;
2.3 'Client' means the person, firm or company named, addressed or otherwise indicated as the client overleaf;
2.4 'Contract' means the contract for the supply of the Deliverables by the Agency to the Client at the Job Cost on the delivery dates agreed and consisting of the other terms set out here and concluded by either the Client signing their acknowledgement of such terms and returning it to the Agency or the Agency starting work on the Deliverables;
2.5 'Deliverables' means the services and/or materials to be supplied by the Agency under the Contract, described in the Brief;
2.6 'Job Cost' means the fee to be charged to the Client for the Deliverables by the Agency specified overleaf or otherwise agreed and confirmed by the Agency in writing; and
2.7 'Rights' means all copyright, design rights (whether registered or unregistered), patents, rights in trade marks (whether registered or unregistered), database rights or other intellectual property rights in the Deliverables, for the full term of those rights, worldwide.
3 The Agency's obligations
The Agency will use its reasonable care and skill in the production and supply to the Client of the Deliverables.
4 Payment
In return for the Agency's production and supply of the Deliverables and subject to the following provisions of this clause 4, the Client shall pay the Job Cost in accordance with the payment schedule set out overleaf or in the absence of such a schedule within 30 days of invoice.
The Agency reserves the right to require the Client to pay the Job Cost before the Agency commences any work. If a Job Cost has not been fixed by the Agency or agreed by the parties at the time of entering the Contract, the Agency may require the Client to pay a percentage of the Job Cost (as estimated by the Agency) in advance to cover the Agency's time attending meetings and/or producing Deliverables.
The Agency reserves the right to charge the Client interest at 4% per year above the base rate of Lloyds Bank TSB from time to time accruing daily on every invoice overdue for payment calculated from the date of the invoice until the date of payment.
5 Brief, Deliverables and changes
The Client warrants that the Brief is accurate in all respects. As the Job Cost and any pre-set dates for supply (in respect of which time shall not be of the essence) of the Deliverables will be agreed on the basis of the Brief, any changes to it after the entering of the Contract, whether resulting from alterations by the Client, delay in providing the Agency with materials, information, instructions or authorisations, supply of faulty materials to the Agency by the Client, or any other circumstances beyond the Agency's control will be subject to additional charges for the Agency's time and work and may involve delays in supply for which the Agency shall not be liable. The Client will pay the additional charges and will reimburse, indemnify and keep indemnified the Agency also for any additional third party charges or expenses incurred by the Agency beyond those allowed for by the Agency on the basis of the Brief.
6. Preliminary and speculative work
Fees, costs and expenses for services and materials produced or supplied by the Agency prior to the entering into of the Contract or for other services, or materials supplied, designed or produced in accordance with the Brief or with any other instruction of the Client (regardless of whether or not the Client subsequently places any order in respect of such work) shall be charged at the Agency's discretion to the Client unless otherwise agreed by the Agency in writing and the Client shall pay all such charges within 30 days of delivery or invoice.
7. Production
Unless otherwise agreed in writing the Agency will arrange and oversee all production and post-production related to the project described in the Brief. Should it be agreed that the Client arranges any production work itself, then in that regard the Agency shall not be responsible for the booking, supervision or quality control of any relevant facilities, nor will it be responsible for payment of any related charges.
8. Approvals
Written approval (which shall include approval confirmed in e-mail) communicated to the Agency by the Client or any officer or employee of the Client of final copy, layouts, scripts, storyboards, designs and the like will be the Agency's authority to proceed with production or publication as appropriate.
Where artwork or other material is sent to the Client for final approval, the Client shall check it carefully and notify the Agency by e-mail, fax or post of any errors or alterations. The Agency will use its reasonable endeavours to effect any changes so notified but the Agency reserves the right to charge extra if any of these alterations either go beyond the original Brief or are notified to the Agency more than 3 working days after their supply to the Client or at any time after the Client has given written approval. Where notification by the Client of errors is either delayed in this way or does not occur at all before publication, the Agency will not be liable in respect of any such errors. The Agency will also not be liable in respect of errors occurring where the Client either does not pay for proofs or mock-ups or oversees the print and production process or does not allow enough time in the production schedule to check layouts, copy, pagination or other content aspects. The Agency cannot guarantee that any or all colours will be exactly replicated in the final version as published.
9. Property and materials supplied by the Client
All property and materials of the Client which are supplied by the Client to the Agent are supplied and will be held by the Agency at the Client's own risk.
The Agency shall not be responsible for and shall have no liability for defects in any Deliverables or other goods caused by defects in or the unsuitability of such materials or equipment.
The Agency shall have a general lien on all property and materials of the Client in its possession in respect of all unpaid debts due from the Client and shall be entitled on the expiration of 30 days' notice to dispose of such goods or property as it thinks fit and to apply the proceeds towards payment of such debts.
10. Intellectual Property Rights
The Client shall have a royalty free licence, coming into effect on payment of the relevant invoice, to use the Deliverables for the purposes, in the territories and in respect of the products or services defined overleaf and/or in the Brief. Such licence shall be automatically terminated if the Client either:
10.1 does not pay the Job Cost in full by the due date; or
10.2 (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
10.3 (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or
10.4 becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
10.5 has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
10.6 ceases, or threatens to cease, to carry on its business.
If the Client wishes to use the Deliverables in ways going beyond the parameters in the Brief and/or overleaf, it must approach the Agency for prior written consent.
In so far as use of the Deliverables as per the Contract involves use of third party material, the Client will secure such licence as is necessary to allow the required use of the same.
Subject to the above and to the rights of any third party, ownership of the Rights shall remain vested in the Agency unless and until any assignment or other disposition of the Rights is agreed between the parties in writing.
For the avoidance of doubt, where the Agency makes any presentation to the Client which contains material which goes beyond the scope of the Brief, the Client shall have no right to make use of any such material unless and until a separate contract is entered into between the parties.
Use of the Deliverables as per the Brief may involve the Client in continuing liability to third parties, for example for royalties, licence fees and performance fees. The Agency will endeavour to notify the Client of these as soon as practicable during the production process.
If, during or after the period of use of the Deliverables envisaged in the Contract, the Client wishes to use or authorise another to use any cartoon figure, distinctive device or other part of the Deliverables in ways outside those contemplated in the Contract, the Agency will not unreasonably withhold its consent for such use but may make such consent conditional on prior agreement between the parties as to reasonable fees and/or royalties.
11. Compliance and Indemnity
It shall be the sole responsibility of the Client to ensure that the Deliverables comply with all local laws (whether consumer, public or civil), regulations and codes in all countries in which use is intended as stated in the Contract including, without prejudice to the generality of the foregoing any and all laws relating to defamation or to the infringement of the intellectual property rights of any person. It shall also be the Client's responsibility to ensure that the Deliverables carry all disclaimers, warnings and public information which any competent lawyer of the Client in any of the relevant jurisdictions would advise.
Accordingly the Client agrees to indemnify, keep indemnified and hold harmless the Agency and the Agency's agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including reasonable legal fees) arising from any claim, demand or action alleging that the Deliverables or use of them are contrary to any law, code or regulation in any country.
12. Publicity and examples
Notwithstanding the licence described in clause 10 above or any other disposition of the Rights agreed between the parties, the Agency shall have a continuing right to use the Deliverables for the purposes of advertising or otherwise promoting the Agency's work.
The Client shall unless otherwise agreed mark all design work supplied as part of the Deliverables with the words Designed by LesniakSwann (or appropriate variants as agreed) in a suitable place. The Agency reserves the right to request the non-appearance or removal of this credit in any particular case. The Client shall comply with any such request within thirty days, but shall not thereby be obliged to make changes to material already produced or published.
The Client shall, within 28 days after production or publication commences (as appropriate), provide the Agency with 10 finished printed copies of any production run or other published material derived from the Deliverables.
13. Expenses
The Agency will, where practicable, endeavour to estimate studio costs and extras such as couriers and other external services to be used in relation to the Deliverables, but this will not always be possible. Expenses related to production, for example couriers, dubs, stock, print-outs, scans, media outlay and booking costs, overtime and general expenses such as hotel and traveling expenses will be invoiced by the Agency at cost and the Client shall pay these invoices on demand.
Where the Agency has provided the Client with a quotation or estimate based on costs to the Agency which subsequently increase the Client will pay the additional costs.
Where expenses are likely to be significant, the Agency reserves the right to require the Client to pay the full amount of the expected expense in advance.
Where additional expenses not contemplated by the Agency are incurred, either as a result of alterations to the original Brief or otherwise at the Client's request, the Client shall pay such expenses by way of settlement of the relevant invoices on demand.
14. Value Added Tax
The Job Cost and Expenses payable by the Client indicated in this Contract or any quotation are shown exclusive of VAT unless otherwise indicated. The Client will pay any VAT at the rate prevailing from time to time.
15. Delivery
If the Deliverables include any goods, then delivery of such goods shall be regarded as occurring when either two business days have elapsed following the day the Client has been informed that the goods are awaiting collection or, in cases where the Deliverables are goods to be delivered to the Client, on the day of delivery to the Client. If the Client is unable to collect the goods as provided for above, then the Agency shall be entitled to arrange storage and/or transportation for the goods on the Client's behalf at the Client's expense.
All charges for such storage, transport and any insurance shall be payable by the Client forthwith on request.
If the Agency delivers to the Client a quantity of up to 10% more or less than the quantity indicated in the Contract the Client shall not be entitled to object or to reject the goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata price. The Client shall inspect and check the goods on delivery and shall give the Agency notice in writing by fax or post within 3 working days after the day of delivery as to any alleged defect together with details of the alleged defect. The Client will permit the Agency to inspect any allegedly defective goods. Any claims for non-delivery for total loss in transit shall be made by the Client by notice in writing within seven days of collection or dispatch of the goods. Failing such notice, the goods shall be deemed to be in accordance with the Contract and the Client shall be deemed to have accepted the goods and to be liable to pay therefore.
The risk in Deliverables shall pass to the Client upon the commencement of supply or transportation to the Client or, where the Client will not accept supply on the date required by the Agency, of temporary storage arranged by the Agency.
Where either delivery difficulties or other circumstances necessitate the Agency electronically storing any part of the Deliverables for the Client's future use, the Agency reserves the right to levy storage charges and charges for retrieval from storage, which the Client shall pay within 14 days of the date of the relevant invoice.
16. Trade marks and domain names
If any Deliverables use any trade marks, trading styles or trade names ('Marks') owned by the Client or under its control, it is agreed that the Agency shall have the right to use or allow use of any such Marks for the purpose of fulfilling the Agency's obligations under the Contract. The Agency shall not gain any rights over such Marks by virtue of such use, but the Agency shall be entitled to use the Marks both during and after the production and supply of the Deliverables to promote and advertise its own work.
It shall be the Client's responsibility to ensure that all domain names used in connection with the Deliverables are wherever practicable properly registered and do not infringe any third party rights and that any Marks of the Client or any third party used in the Deliverables, including such Marks as are supplied by the Agency as part of the Brief, are used in a manner which neither undermines the Client's rights in its Marks nor infringes any third party rights.
17. Rejection or cancellation
Unless a rejection fee has been agreed in advance, the Client shall have no right to terminate the Contract, allege breach of Contract or seek any cancellation, reduction or repayment of the Job Cost on the basis of style or composition.
Once the Contract is concluded as provided on these terms and conditions, any subsequent cancellation by the Client will result in the Client being liable for the full Job Cost as if the cancellation had not taken place, excluding such committed third party expenses as the Agency is able to avoid liability for within its existing contractual commitments to suppliers.
18. Property
Where Deliverables are supplied to the Client on computer disks or other electronic storage method, then the Agency remains the owner of these storage media and reserves the right to require immediate return of them. If additional copies of such disks are requested by the Client these may be supplied by the Agency at its discretion and on payment of a fee.
Should any artwork be supplied to the Client in digital form, the Client may not amend it or otherwise use it for purposes outside those contemplated by this Contract without the Agency's express prior written permission. The Agency will not retain copies of artwork beyond 12 months from delivery to the Client unless at its discretion or by agreement with the Client.
19. Liability
The Agency accepts liability for its own negligence or faults in the Deliverables, but only to the extent stated in this clause.
The Agency does not exclude or restrict its liability for death or personal injury resulting from negligence.
The Agency's liability to the Client in contract law or in tort or otherwise howsoever arising in relation to this Contract is limited to the amount of the Job Cost.
The Agency will not be liable to the Client for any loss or destruction of software or systems, temporary or otherwise, which occurs following use of the Deliverables except and to the extent that it is caused by the wilful default of one of the Agency's employees.
Although the Agency will endeavor to ensure that the Deliverables contain no software routine designed to permit unauthorised access, disable or erase existing software or software contained in the Deliverables or any data or hardware, the Agency shall not, except insofar as it cannot exclude its liability for death or personal injury caused by its negligence, be liable for any damage (physical or otherwise), loss or expense caused either directly or indirectly by use of the Deliverables.
The Agency shall not be liable in any way in respect of any failure, delay or defect in the supply or use of the Deliverables caused by the supply or specification by the Client of unsuitable material or content or by the reproduction of the Deliverables by a third party.
Where such event could not reasonably have been prevented or controlled by the Agency, the Agency is not liable to the Client if any hardware or software used in conjunction with the Deliverables malfunctions, fails or is otherwise unable to communicate with other systems or Internet users (including where computer viruses have caused such failures) such that the use of the Deliverables is hindered or impeded.
In any event the Agency is not liable to the Client for the following loss or damage, howsoever caused and even if foreseeable by the Agency:
19.1 economic loss including loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of any description;
19.2 loss arising from any claim made against the Client by any other person; or
19.3 loss or damage arising from the Client's failure to fulfil its responsibilities or any matter under the of the Client.
20. Agency's status
The Agency acts in this Contract as a principal and not as agent for the Client and will enter into all related contracts as principal.
21. Sub-contracting and assignment
The Agency may sub-contract any or all of its rights or obligations hereunder and may with the Client's consent, such consent not to be unreasonably withheld, assign the benefit and burden of its rights and obligations hereunder to any other entity.
22. Confidential information
Neither party shall divulge any confidential information which is supplied to it about the other party in the course of this Contract or any pre-Contract discussions, other than information forming part of the public domain otherwise than through a breach of this clause or any other obligation of confidence.
23. Termination
Either party may by notice in writing to the other terminate this Contract forthwith upon the happening of one or more of the following events:
23.1 if the other shall fail to make any payment due hereunder within 7 days after the due date, or to remedy any other breach within 30 days after being required to do so in writing,
23.2 if the other shall be involved in any of the situations described at clause 10.2-10.6 above.
Such termination shall be without prejudice to the parties' accrued rights and liabilities, for example the Agency's entitlement to payment for work done.
24. Matters beyond the Agency's reasonable control
The Agency is not liable for any breach of this Contract caused by matters beyond its reasonable control including (without limitation) acts of God, fire, lightning, explosion, war, disorder, flood, drought, industrial disputes (whether or not involving the Agency's employees), weather of exceptional severity or acts of local or central government or other authorities.
25. Severance
If any provision of this Contract is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Contract which shall remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
26. Entire agreement
Save as expressly provided herein, this Contract is the entire agreement between the parties on the subject matter contained herein and supersedes all representations, communications and prior agreements between the parties in that regard.
Each party acknowledges that upon entering into this Contract it does not rely and has not relied on any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether a party to this Contract or not) except those expressly referred to in this Contract. The only remedy available in respect of any misrepresentation or untrue statement made to either party shall be a claim for damages for breach of contract under this Contract. This clause shall not apply to any statement, representation or warranty made fraudulently, or to any provision of this Contract which was induced by fraud for which the remedies available shall be those available under the law governing this Contract.
27. Third party rights
A person who is not a party to this Contract has no rights under the Contracts (Rights of Third Parties) Act of 1999 to enforce any term of this Contract, but this does not affect any other right or remedy of a third party.
28. Service of notices
Any written notice required by this Contract should be sent to the address or contact details of the intended recipient shown overleaf. Notices can be sent by hand, by post or by fax.
29. Governing law and jurisdiction
This Contract and any relevant interaction between the parties shall be governed by and construed in accordance with the laws of England and Wales and both parties agree to submit to the non-exclusive jurisdiction of the courts of England and Wales in relation to any claim, dispute or difference which may arise hereunder or in relation to any relevant interaction between the parties prior to this Contract.