Design & Image Limited
These Terms and Conditions apply to the Contract and each future request for the supply of services or materials received by Design & Image Limited from the client from time to time unless otherwise agreed in writing. The supply of the Services shall be subject to these Terms, which shall take precedence over any Terms and Conditions of the Client.
Headings contained in this agreement are for reference purposes only and should not be incorporated into this agreement and shall not be deemed to be any indication of the meaning of the clauses to which they relate.
All agreements on the part of either of the parties which comprise more than one person or entity shall be joint and several and the neuter singular gender throughout this agreement shall include all genders and the plural and the successor in title to the parties.
Design & Image Limited is owned and run by Robin Pritchard, who has over twenty years’ hands on experience of commercial graphic design expertise and has been involved in a wide range of design projects.
At Design & Image Limited we will provide you with a highly personal and professional service that balances creative skills with practical solutions tailored to your budget. Design & Image Limited have worked with a range of local SMEs in service and manufacturing, educational bodies and local government agencies.
Design & Image Limited shall be an independent contractor and not the servant of the Client.
In such capacity Design & Image Limited shall bear exclusive responsibility for the payment of his national insurance contributions as a self-employed person and for discharge of any income tax and VAT liability arising out of remuneration for his work performed by him under this agreement.
Design & Image Limited shall not be subject to directions from the Client as to the manner in which he performs his work.
2 Definitions and interpretation
The following terms shall have the following meanings for the purposes of this agreement:
“Design & Image Limited” means the design business of Robin Pritchard operating from The Old Post Office, Whittington, Carnforth, Lancashire LA6 2NY.
“Brief” means the written brief describing the Project, its intended use and any pre-set timings for supply agreed with the client either orally or in writing before the conclusion of the contract.
“Client” means the person, firm or company, making a request for services to Design & Image Limited.
“Contract” means the contract consisting of this form and concluded by either the Clients signing the form and returning it to Design & Image Limited or Design & Image Limited starting work on the Project.
“Project” means the design work produced or to be produced by Design & Image Limited for the client.
“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 Project, for the full term of those rights, worldwide.
The Client appoints the Design & Image Limited to provide him with the Project in return for the Payment.
4 Design & Image Limited’s obligations
Design & Image Limited will use its reasonable care and skill in the production and supply to the Client of the Project as per the Brief and any other requirements identified by the Client before conclusion of this Contract.
Design & Image Limited will arrange and oversee all production and other services (if agreed) related to the Project. Should it be agreed that the Client arranges any production work itself, then in that regard Design & Image Limited shall not be responsible for the, supervision or quality control of any relevant facilities, nor will it be responsible for payment of any related charges.
The Client may inspect Previous Projects by prior arrangement with Design & Image Limited during normal business hours before the commencement of the Term. It shall at all times be the Client’s responsibility to satisfy itself that Design & Image Limited’s Projects are suitable for the Client’s purpose.
It is not a condition of the Agreement between Design & Image Limited and the Client and there is no express or implied warranty on the part of Design & Image Limited that the Project will be fit for the purposes of the Client and there is no obligation whatever on the part of Design & Image Limited to assess the needs of the Client or to advise the Client in relation to such needs. Any assessment or advice which may be given by Design & Image Limited is entirely without liability on the part of Design & Image Limited and does not form part of any agreement between Design & Image Limited and the Client.
If the Project includes any goods, then delivery of such goods shall be regarded as occurring when either five business days have elapsed following the day the Client has been informed that the goods are awaiting collection or, in cases where the Project includes delivery of the goods to the Client, on the day of delivery to the Client.
The Client shall inspect and check the goods immediately on delivery and shall give Design & Image Limited notice in writing by email 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 Design & Image Limited to inspect any allegedly defective 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.
7 Title to goods
Design & Image Limited is the ‘author’ of recordings for the purposes of the Copyright Designs and Patents Act 1988 as from time to time amended and the Client recognises Design & Image Limited’s copyright in all recordings.
Where any materials or goods are supplied by Design & Image Limited to the Client the Client shall be deemed irrevocably to have accepted such materials unless the Client shall have objected in writing to Design & Image Limited within 24 hours from receipt of the same. In the event any materials delivered to the Client are of unsatisfactory quality Design & Image Limited’s sole liability shall be in relation to the replacement of such materials and Design & Image Limited shall incur no liability whatever in relation to any photographic or digital recordings of the Client which may be lost or damaged as a result of the loss of supply of any such materials.
8 The Client’s obligations
In consideration of the services to be rendered by the Contractor under this agreement the Client agrees to make the Payments promptly without demand deduction or set-off; and
To comply with the terms of any Notice specifying a breach of the provisions of this agreement and requiring the breach to be remedied so far as it may be but nothing in this clause is intended to require the Client to serve notice of any breach before taking action in respect of it.
The client shall pay to Design & Image Limited a deposit of 10% of the Price quoted the deposit shall be non-refundable. Design& Image reserves the right to request advanced payment for any printed or display material, photography or illustration or other bought in services.
The Client warrants to Design & Image Limited that it has obtained all consents licences and clearances required from copyright owners, owners of moral rights and all other persons of any description having any proprietary or other right or interest of whatever nature arising as a result of the Project being made available to the Client and of subsequent exploitation of materials made or recorded in the studios and undertakes to indemnify Design & Image from and against all and any liability to third parties for royalties, performance incomes, statutory, defamation, breach of privacy, infringement of copyright, moral rights, trade marks, publicity rights, privacy right, personality right or any right whatever involved or arising directly or indirectly as a result of the Client’s activities.
It shall be the sole responsibility of the Client to ensure that the Project complies 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 Project carries 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 and hold harmless Design & Image Limited 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 Project or use of it is contrary to any law, code or regulation in any country.
The Client shall have a royalty free licence, coming into effect on payment of the relevant invoice, to use the Project for the purposes, in the territories and in respect of the Projects or services defined in the Brief. Such licence shall be automatically terminated if the Client either:
i) does not pay the Cost in full by the due date; or
ii) (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
iii) (being a partnership or other unincorporated association) is dissolved or
iv) (being a natural person) dies; or
v) becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
vi) has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
vii) ceases, or threatens to cease, to carry on its business.
If the Client wishes to use the Project in ways going beyond the parameters in the Brief, it must approach Design & Image Limited for prior written consent. In so far as use of the Project as per the Terms & Conditions involves use of third party material, the Client must 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 Design & Image Limited unless and until any assignment or other disposition of the Rights is agreed between the parties in writing.
Where Design & Image Limited 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 Publicity and examples
Notwithstanding the licence described in clause 9 above or any other disposition of the Rights agreed between the parties, Design & Image Limited shall have a continuing right to use the Project for the purposes of advertising or otherwise promoting Design & Image Limited’s work. Design & Image Limited shall unless otherwise agreed mark all design work supplied as part of the Project with the phrase ‘Copyright Design & Image Limited’ (or appropriate variants as agreed) in a suitable place. The Client may request the non-appearance or removal of this credit in any particular case. Design & Image Limited shall comply with any such request within thirty days, but shall not thereby be obliged to make changes to material already produced or published. Design & Image Limited will, within 28 days after production or publication commences (as appropriate), provide the Client with a finished copy of any production run or other published material derived from the Project.
11 Trade marks and domain names
If the Project uses any trade marks, trading styles or trade names (‘Marks’) owned by the Client or under its control, it is agreed that Design & Image Limited shall have the right to use or allow use of any such Marks for the purpose of fulfilling the Design & Image Limited’s obligations under the Contract. Design & Image Limited shall not gain any rights over such Marks by virtue of such use, but Design & Image Limited shall be entitled to use the Marks both during and after the production and supply of the Project 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 Project 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 Project, including such Marks as are supplied by Design & Image Limited 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.
Design & Image Limited accepts liability for its own negligence or faults in the Project, but only to the extent stated in this clause. Design & Image Limited does not exclude or restrict its liability for death or personal injury resulting from negligence. The Design & Image Limited’s liability to the Client in contract law or in tort or otherwise howsoever arising in relation to this Contract is limited to Design & Image Limited’s charges for the Project.
Design & Image Limited’s liability is limited to the production of the Project.
Design & Image Limited shall not be liable to the Client for the death of or injury to the Client loss or damage to the Client’s property unless due to the negligence or other failure of the Contractor to perform its obligations under this agreement or under the general law.
Design & Image Limited 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 Project except and to the extent that it is caused by the wilful default of one of Design & Image Limited’s employees.
Although Design & Image Limited will endeavour to ensure that the Project contains no software routine designed to permit unauthorised access, disable or erase existing software or software contained in the Project or any data or hardware, Design & Image Limited 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 Project.
Design & Image Limited will not be liable in any way in respect of any failure, delay or defect in the supply or use of the Project caused by the supply or specification by the Client of unsuitable material or content or by the reproduction of the Project by a third party. Where such event could not reasonably have been prevented or controlled by Design & Image Limited, Design & Image Limited is not liable to the Client if any hardware or software used in conjunction with the Project 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 Project is hindered or impeded.
In any event Design & Image Limited is not liable to the Client for the following loss or damage, howsoever caused and even if foreseeable by the Project:
(i) economic loss including loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of any description;
(ii) loss arising from any claim made against the Client by any other person; or
(iii) loss or damage arising from the Client’s failure to fulfill its responsibilities or any matter under the control of the Client.
13 Termination for breach
The following obligations are conditions of this agreement and any breach of them shall be deemed a fundamental breach which shall determine this agreement immediately and the rights and liabilities of the parties shall then be determined in accordance with clause 15: Failure on the part of the Client to make punctual payment of any sums due to Design & Image Limited under the terms of this agreement, the brief, or any combination of the two;
The doing or permitting of any act by which Design & Image Limited’s rights in the Intellectual Property may be prejudiced or put in jeopardy.
14 Termination consequences
In the event of this agreement being determined whether by effluxion of time Notice breach or otherwise:
The Client shall immediately pay to Design & Image Limited:
i) all arrears of Payments and any other sums due under the terms of this agreement, and
ii) all further sums which would but for the determination of this agreement have fallen due at the end of the Term less a discount for any accelerated payment at the rate of 4% above the base rate of Barclays Bank PLC per year;
Either party shall be entitled to exercise any one or more of the rights and remedies given to it under the terms of this agreement and the determination of this agreement shall not affect or prejudice such rights and remedies and each party shall be and remain liable to perform all outstanding liabilities under this agreement notwithstanding that the other may have exercised one or more of the rights and remedies against it; and
Any right or remedy to which either party is or may become entitled under this agreement or in consequence of the other’s conduct may be enforced from time to time separately or concurrently with any right or remedy given by this agreement or now or afterwards provided for and arising by operation of law so that such rights and remedies are not exclusive of the other or others but are cumulative.
Each of the parties warrants its power to enter into this agreement.
All sums due from either of the parties to the other which are not paid on the due date (without prejudice to the rights of the Contractor under this agreement) shall bear interest from day to day at the annual rate of 4% over the daily base lending rate of Barclays Bank plc with a minimum of 8% per year.
The receipt of money by either of the parties shall not prevent either of them from questioning the correctness of any statement in respect of such money.
18 Force Majeur
Both parties shall be released from their respective obligations in the event of national emergency war prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties or either of them renders the performance of this agreement impossible whereupon all money due under this agreement shall be paid immediately and in particular:
i) the Client shall immediately pay to Design & Image Limited all arrears of Payments,
If any term or provision or any part of a term or provision in these terms and conditions shall be held to be illegal or unenforceable under an enactment or rule of law such term or provision or part of it shall to that extent be deemed not to form part of these terms and conditions then the enforceability of the remainder of the terms and conditions shall not be affected.
19 Passage of Time
Design & Image Limited may delay or permit the passage of time before taking steps to enforce provisions of these terms and conditions without prejudicing or waiving its rights.
Any notices required to be served by Design & Image Limited on the Client shall be deemed to be properly served if delivered in person or sent by first class pre-paid post or recorded mail to the addresses specified for the either Design & Image Limited or the Client.
Design & Image Limited shall be entitled to assign its rights or obligations or a combination of both under this Agreement.
This Agreement is personal to the Client and may not be assigned or charged by it.
If any provision of this agreement is declared by any judicial or other competent authority to be void voidable illegal or otherwise unenforceable or indications to that effect are received by either of the parties from any competent authority the parties shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality or at the discretion of the Contractor it may be severed from this agreement.
23 Proper law and jurisdiction
This agreement shall be governed by English law in every particular including formation and interpretation and shall be deemed to have been made in England.
Any proceedings arising out of or in connection with this agreement may be brought in any court of competent jurisdiction in England and Wales.
The submission by the parties to such jurisdiction shall not limit the right of Design & Image Limited to commence any proceedings arising out of this agreement in any other jurisdiction it may consider appropriate.
Any notice of proceedings or other notices in connection with or which would give effect to any such proceedings may without prejudice to any other method of service be served on any party in accordance with clause 28.
24 Rights cumulative
All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this agreement shall restrict or prejudice the exercise of any other right granted by this agreement or otherwise available to it.
25 Third party rights
A person who is not a party to this agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this agreement.
All disputes or differences which at any time arise between the parties whether during the Term or afterwards touching or concerning this agreement or its construction or effect or the rights duties or liabilities of the parties under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of this agreement shall be referred to a single arbitrator to be agreed upon by the parties or in default of agreement to be nominated by the President for the time being of the Chartered Institution of Arbitrators in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment of it for the time being in force.