1. Terms and conditions
The following terms and conditions apply to the Contract (see definition below) and each future request for the supply of services and/or materials received by the Agency from the Client (see definition below) from time to time unless otherwise agreed in writing. The communication of a request by the Client to the Agency for the supply of services and/or materials shall amount to the Client’s acceptance of these terms. These terms shall take precedence over any terms and conditions of the Client, whether attached to, enclosed with or referred to in any purchase order of the Client or elsewhere. They may not be varied except by written agreement between the Agency and the Client.
In these terms and conditions the following words shall have the meanings given in this clause:
2.1 ‘Agency’ means THE PROMOTIONS FACTORY LTD whose registered office is 21 Bedford Square, London WC1B 3HH, a company registered in England number 03687321;
2.2 ‘Brief’ means the written and/or verbal brief describing the Services, their intended use and any pre-set timings for supply, supplied to the Agency in advance of conclusion of the Contract;
2.3 ‘Client’ means the person, firm or company described as such overleaf;
2.4 ‘Contract’ means the contract consisting of the front and back of this quotation/invoice and concluded by either the Client signing overleaf and returning it to the Agency or the Agency starting work on the Services;
2.5 ‘Services’ means the services and/or materials to be supplied by the Agency under this Contract, described in brief overleaf and in more detail in the Brief;
2.6 ‘ Price’ means the price to be charged by the Agency for the Services and specified on the front of this quotation/invoice or any increase in that price by reason of the rights reserved under the terms of this Agreement ;
2.7 ‘Rights’ means all copyright and related rights, design rights (whether registered or unregistered), patents, rights in trade marks (whether registered or unregistered), database rights and any other intellectual property rights (including all similar or equivalent rights or forms of protection in any part of the world) in or relating to the Services.
3. The agencys obligations
The Agency will use its reasonable care and skill in the production and supply to the Client of the Services as per the Brief and any other requirements identified overleaf.
In return for the Agency’s production and supply of the Services the Client shall pay the Price in accordance with the payment schedule set out overleaf and in the event of no such schedule be set out overleaf within 30 days from the date of invoice. Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Agency on the due date, the Agency may charge the Client interest at 0.05% per day from the due date until the date of payment whether before or after judgment, and may suspend all of its obligations hereunder until payment has been made in full. The Agency reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. The Agency reserves the right to require the Client to pay the total Price in advance and/or by installments before the Agency commences any work. If a final Price has not been agreed at the time of concluding the Contract, the Agency will require the Client to pay a percentage of the estimated total Price in advance to cover the Agency’s time attending meetings and/or producing Services in advance of a final sign-off by the Client of the budget. The Agency reserves the right to increase the Price at any time after acceptance by the Client by an amount equivalent to any increase which may have arisen in the cost to the Agency of producing or supplying the Services.
5. Brief, Services and Changes
The Client warrants that the Brief is accurate in all respects. As the Price and any pre-set dates for supply of the Services will be agreed on the basis of the Brief, any changes to it after the conclusion 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 extra charges for the Agency’s time and work and may involve delays in supply. The Client will pay these extra charges and reimburse the Agency for any third party charges or expenses incurred by the Agency on the basis of the original or amended Brief.
Unless otherwise agreed in writing the Agency will arrange and oversee the production of the Services. Should it be agreed that the Client arranges or supplies any of the Services itself, then in that regard the Agency shall not be responsible for the booking, costs, expenses, supervision or quality control of any the Services arranged or supplied by the Client and the risk of those Services is the Client’s and the Client should insure those Services against all insurable risks from and including the date the risk in them passes to it.
The Agency requires written approval from the Client of final copy, artwork, prototypes, visuals, layouts, scripts, storyboards, designs, proofs facilities, itinerary, press releases, publicity materials and the like before the Agency will proceed with production, supply or publication as appropriate. The written approval can be contained in a letter, email or fax. Where artwork, other material, details of facilities or itineraries or the like is sent to the Client for approval, the Client shall check it carefully and notify the Agency by email, fax or post of any errors or changes. 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 go beyond the original Brief. If errors in the artwork or the like are notified to the Agency (a) more than 3 working days after the artwork or the like is sent to the Client for approval or (b) after the Agency has received written approval from the Client for the said artwork or like, the Agency will not be liable for such errors. In addition, if errors in artwork or like are not notified to the Agency at all before publication of the said artwork or like, the Agency will not be liable for 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 does not allow enough time in the production schedule to check layouts, copy, pagination, proofs travel/accommodation arrangements, or other content aspects. The Agency cannot guarantee that any or all colours will be exactly replicated in the final version as published. The Client’s approval of the item of artwork or the like will be authority for the Agency to proceed with the item’s publication or production or distribution or booking.
The Client shall have a license for the period stated on the front of this quotation or, in the absence of such period, for no longer than 12 months from the date of this Agreement, to use the Services for the purposes, in the territories and in respect of the products or services defined overleaf and/or the Brief. Such license shall be automatically terminated if the Client either:
8.1 does not pay the Price by the due date or does not pay any invoice which the Agency renders to the Client within 30 days of the date of the invoice; or
8.2 (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
8.3 (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or
8.4 becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
8.5 has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
8.6 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 Services as per the Contract involves use of third party material, the Agency will secure such license as is necessary to allow the required use of the same unless the material is supplied by the Client. 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 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. Use of the Services as per the Brief may involve the Client in a continuing liability to third parties, for example for royalties, license 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 Services envisaged in this Contract, the Client wishes to use or authorise another to use any part of the Services in ways outside those contemplated in this Contract, the Client must first obtain the Agency prior written consent such consent may be conditional on prior agreement between the parties as to reasonable fees and/or royalties.
It shall be the sole responsibility of the Client to ensure that the Services 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 Services 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 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 Services or use of them are contrary to any law, code or regulation in any country.
10. Publicity and examples
Notwithstanding the licence described in clause 8 above or any other disposition of the Rights agreed between the parties, the Agency shall have a continuing right to use the Services 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 phrase ‘Design by The Promotions Factory Ltd’ (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 30 days, but shall not thereby be obliged to make changes to material already produced or published. If the Client arranges or supplies any production run or other published material derived from the Services, the Client shall, within 28 days after production or publication commences (as appropriate), provide the Agency with 10 finished printed copies of that production run or other published material.
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 Services, but this will not always be possible. All expenses and any commission on those expenses which relate to the production of the Services will be invoiced by the Agency and the Client shall pay such invoices within 14 days of the date of the invoice. 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. General out-of-pocket expenses incurred in supplying the Services, such as courier charges, traveling and hotel expenses will be charged by the Agency and the Client shall pay the relevant invoices within 14 days of the date of the invoice. 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 14 days of the date of the relevant invoice.
If the Services 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 Services include delivery of the goods to the Client, on the day of delivery of the goods to the Client. If the Client is unable to collect the goods, 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. The Client shall inspect and check the goods immediately 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. 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 for the goods. The risk in Services shall pass to the Client upon delivery or transportation to the Client or to temporary storage arranged by the Agency (whichever is the earlier) and accordingly the Client should insure the Services against all insurable risks from and including the date the risk in the Services passes to it. Where either delivery difficulties or other circumstances necessitate the Agency electronically storing any part of the Services 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. Every reasonable endeavour will be made to deliver the quantity of Services as stated overleaf but the Agency reserves the right to vary the quantity by a maximum of + or – 5%.
13. Trade marks and domain names
If any Services 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. 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 Services 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 Services 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 Services, 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.
14. 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 Price 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 Price 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.
Where Services 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.
Nothing in these terms and conditions shall exclude or restrict the Agency’s liability for death or personal injury resulting from its negligence, liability for fraudulent misrepresentation or any other liability which cannot be excluded or limited under applicable law. Subject to this:
16.1 the Agency’s total liability to the Client in contract law or in tort or otherwise howsoever arising in relation to this Contract is limited to the Agency’s charges for the Services or £50,000 which ever is the lesser sum;
16.2 the Agency shall not be liable in any way in respect of any failure, delay or defect in the supply or use of the Services caused by the supply or specification by the Client of unsuitable material or content or by the reproduction of the Services by a third party; and
16.3 the Agency will not be liable to the Client for economic loss including loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of any description howsoever caused and even if foreseeable by the Agency.
16.4 the Agency will not be liable for any loss or damage to the Client’s property in the event that the Client is insured against such loss or damage or under an obligation to insure against such loss or damage or could have reasonably be expected to insure against such loss or damage. All warranties, conditions and other terms implied by statute, common law or otherwise are hereby excluded from the Contract to the fullest extent permitted by law.
17. Agencys 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 save for related contracts for the supply of those Services marked with an asterisk overleaf in whose case the Agent acts as agent and not principle for the Client. The Agency may from time to time receive a commission, discount or other payment or concession from a third party as a result of its performance of its functions as an agent for the Client, the Agency will not be required to account to the Client for any such commission or the like.
18. Sub-contracting and assignment
The Agency may sub-contract any or all of its rights or obligations under this Contract and may with the Client’s consent, such consent not to be unreasonably withheld or delayed, assign the benefit and burden of its rights and obligations under this Contract to any other entity.
19. 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.
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:
20.1 if the other shall fail to make any payment due under this Contract within 7 days after the due date, or to remedy any other breach within 30 days after being required to do so in writing; or
20.2 if the other shall be involved in any of the situations described at clauses 8.2-8.6 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.
21. Matters beyond the Agencys 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, unavoidable hardware or software failures, or acts of local or central government or other authorities.
22. Entire agreement
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 it has entered into this Contract in reliance only on the representations, warranties, promises and terms contained or expressly referred to in this Contract and, save as expressly set out in these terms and conditions, neither party shall have any liability in respect of any other representation, warranty or promise unless it was made fraudulently.
23. Third party rights
Unless expressly provided in this Contract, no term of this Contract is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
24. Service of notices
Any written notice required by this Contract should be sent to the address of the intended recipient shown overleaf. Notices can be sent by recorded delivery, email or by fax.
25. Governing law and jurisdiction
This Contract and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with English law and each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of England and Wales.
26. VAT and tax
The Agency makes no representation that the Client can claim back any VAT charged on the Price and does not provide any advice to the Client on any issues to do with corporation tax, income tax, national insurance, VAT or any other tax levied by Her Majesty’s Revenue and Customs or by any other authority and recommends that the Client seeks independent specialist advice on such matters