Terms and Conditions of Business
1 Terms and conditions
The Agency agrees to supply of the Deliverables subject to these terms, which shall take precedence over any terms and conditions of the Client.
2 Definitions and Interpretation
2.1 In these terms and conditions the following words shall have the meanings given in this clause:
‘Agency’ means Tigerlilly Designs;
‘Brief’ means the written brief describing the Deliverables, their intended use and any pre-set timings for supply.;
‘Client’ means the person(s), firm or company who purchases the Deliverables from the Agency;
‘Deliverables’ means the services and/or materials to be supplied by the Agency under these terms and conditions as further specified in the Brief and may include researching drafting and distributing press releases to the media;
‘Charges’ means the fee to be charged by the Agency for the Deliverables as specified in the Agency’s quotation to the Client or if no quotation in accordance with the Agency’s then current price list;
‘Project’ means the work being carried out by the Agency for the Client as specified in the Brief;
‘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.
2.2 In this agreement and where the context so admits or requires the masculine gender shall include the feminine or neuter (and vice versa) and expressions in the singular shall include the plural.
3.1 The Client shall be entitled to order Deliverables from the Agency by the issuing of a Brief.
3.2 No order shall be deemed to be binding on the Agency until the Agency has issued an order acceptance notice to the Client.
4 The Agency’s obligations
The Agency will use its reasonable care and skill in the production and supply to the Client of the Deliverables as per the Brief and any other requirements identified in the Brief.
5.1 In consideration of the Agency producing and supplying the Deliverables the Client shall pay the Charges
5.2 All charges referred to in these terms and conditions are exclusive of VAT and any other applicable tax which shall be payable by the Client.
6.1 Subject to clause 6.5, the due date for payment will be set out in the quotation or otherwise specified by the Agency in writing. Where no due date has been specified, payment of the Charges shall be due 14 days following the delivery of the Deliverables.
6.2 The Agency reserves the right to require the Client to pay the total Charges or a percentage of the estimated total Charges up front before the Agency commences any work.
6.3 Time for payment shall be of the essence.
6.4 No payment shall be deemed to have been received until the Agency has received cleared funds.
6.5 All payments payable to the Agency under the Contract shall become due immediately upon termination of this Contract despite any other provision.
6.6 The Client shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by the Agency to the Client.
6.7 If the Client fails to pay the Agency any sum due pursuant to the Contract the Client will be liable to pay interest to the Agency on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Agency reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7 Brief, Deliverables and changes
The Client warrants that the Brief is accurate in all respects. As the Charges and any pre-set dates for supply of the Deliverables will be agreed on the basis of the Brief, any changes to it after acceptance of the Brief by the Agency will only be by written consent of both parties. Prior to accepting any such change the Agency reserves the right to review the quotation and provide the Client with a revised quote due to the change.
Unless otherwise agreed in writing the Agency will arrange and oversee all production and post-production related to the Project. 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.
9.1 The Agency shall issue to the Client final copy, layouts, scripts, storyboards, and designs for approval. The Client will be deemed to have accepted the final copy, layouts, scripts, storyboards, and designs if it does not notify the Agency of any errors or alterations it requires within 3 working days of receiving the same.
9.2 Approval pursuant to clause 9.1 will be the Agency’s authority to proceed with production or publication as appropriate.
9.3 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.
9.4 The Agency will not be liable in respect of any errors, which are not notified in accordance with clause 9.1.
9.5 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.
9.6 The Agency cannot guarantee that any or all colours will be exactly replicated in the final version as published.
10.1 Subject to clause 10.3, 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:
10.1.1 does not pay the Charges in full by the due date; or
10.1.2 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
10.1.3 being a partnership or other unincorporated association, is dissolved or (being a natural person) dies; or
10.1.4 becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
10.1.5 has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
10.1.6 ceases, or threatens to cease, to carry on its business.
10.2 If the Client wishes to use the Deliverables in ways going beyond the parameters in the Brief and/or overleaf, it must obtain a further license from the Agency.
10.3 In so far as use of the Deliverables involves use of third party material, the Agency will secure such licence as is necessary to allow the required use of the same.
10.4 Subject to the above and to the rights of any third party, ownership of the Rights shall remain vested in the Agency.
10.5 For the avoidance of doubt, where the Agency makes any presentation to the Client going beyond the Brief, the Client shall have no right to make use of any material contained in such presentation unless and until a separate contract is concluded between the parties.
10.6 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.
11.1 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. 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.
11.2 Accordingly the Client agrees to indemnify 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
12.1 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.
12.2 The Agency shall unless otherwise agreed mark all design work supplied as part of the Deliverables with the phrase ‘Design by Tigerlilly Designs’ (or appropriate variants as agreed) in a suitable place.
12.3 The Client reserves the right to request the non-appearance or removal of this credit in any particular case. The Agency shall comply with any such request within thirty days, but shall not thereby be obliged to make changes to material already produced or published.
12.4 The Client shall, within 28 days after production or publication commences (as appropriate), provide the Agency with 5 finished printed copies of any production run or other published material derived from the Deliverables.
13.1 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.
13.2 All expenses related to a production, for example couriers, dubs, stock, print-outs, scans and overtime, will be invoiced by the Agency at cost and the Client shall pay these invoices within 30 days of the date of the invoice.
13.3 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.
13.4 General out of pocket expenses incurred in supplying the Deliverables, such as courier charges, travelling and hotel expenses, will be charged by the Agency at cost and the Client shall pay the relevant invoices within 30 days of the date of the invoice.
13.5 Where extra expenses 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 within 30 days of the date of the relevant invoice.
14 Trade marks and domain names
14.1 If any Deliverables use any trademarks, 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.
14.2 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.
14.3 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.
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. 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.
16.1 The Agency accepts liability for its own negligence or faults in the Deliverables, but only to the extent stated in this clause.
16.2 The Agency does not exclude or restrict its liability for death or personal injury resulting from its own negligence.
16.3 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 Charges paid by the Client in respect of the Brief in which liability arising.
16.4 Except as specified in clause 16.2 the Agency shall not be liable to the Client for the following loss or damage, howsoever caused and even if foreseeable by the Agency:
16.4.1 economic loss including loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of any description;
16.4.2 loss arising from any claim made against the Client by any other person; or
16.4.3 loss or damage arising from the Client’s failure to fulfil its responsibilities or any matter under the control of the Client.
17 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.
18 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.
19.1 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:
19.1.1 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,
19.1.2 if the other shall be involved in any of the situations described at clause 10.1.2–10.1.6 above.
19.2 Such termination shall be without prejudice to the parties’ accrued rights and liabilities, for example, the Agency’s entitlement to payment for work done.
20 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 acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving the Agency’s employees), weather of exceptional severity or acts of local or central government or other authorities.
21 Entire agreement
21.1 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.
21.2 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.
22 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.
23 Service of notices
Any notice hereunder shall be in writing and may be served by sending it by telex or pre‑paid first class letter post or delivery if (in the case of a limited company) to the address stated herein, and in any other case, to the last known address of the addressee. In proving service of any notice it shall be sufficient to prove in the case of telex that the addressee’s answer‑back code appeared on the sender’s copy of the telex and in the case of posting that the envelope containing the notice was properly addressed, stamped and posted. Service shall be deemed to be effective in the case of telex on the next business day following the day on which the telex was sent and in the case of posting at noon of the second business day following the day of posting and any notice delivered to an address by hand shall be deemed to be effective from the date of such delivery.
24 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.