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 Customer (see definition below) from time to time unless otherwise agreed in writing. The supply of the Deliverables (see definition below) shall be subject to these terms, which shall take precedence over any terms and conditions of the Customer.
In these terms and conditions the following words shall have the meanings given in this clause:
2.1 “Agency” means the The Factory Partnership Limited (Co. Reg. No. 05022710) trading as The Factory First Floor, 4-5 Booths Yard, Pudsey, Leeds, LS28 7AD, a company registered in England;
2.2 “Brief” means the written brief describing the Deliverables, their intended use and any pre-set timings for supply, signed by the Customer and supplied to the Agency in advance of conclusion of the Contract;
2.3 “Customer” means the person, firm or company described as such overleaf;
2.4 “Contract” means the contract consisting of the front and back of this form and concluded by either the Customer signing overleaf 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 this Contract, described in brief overleaf and in more detail in the Brief;
2.6 “Job Cost” means the fee to be charged by the Agency for the Deliverables and specified on the front of this form;
2.7 “Project” means the job described overleaf; and
2.8 “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 Customer of the Deliverables as per the Brief and any other requirements identified overleaf.
In return for the Agency’s production and supply of the Deliverables the Customer shall pay the Job Cost in accordance with the payment schedule set out overleaf. The Agency reserves the right to charge the Customer interest at 4% per year above the base rate of the NatWest from time to time accruing daily on every invoice overdue for payment calculated from the date of the invoice until the date of payment and an administration fee to cover the debt recovery costs, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
The Agency reserves the right to require the Customer to pay the total Job Cost up front before the Agency commences any work unless otherwise agreed in writing. If a final Job Cost has not been agreed at the time of concluding the Contract, the Agency will require the Customer to pay 25% of the estimated total Job Cost in advance to cover the Agency time attending meetings and/or producing Deliverables in advance of a final sign-off by the Customer of the budget.
5. Brief, Deliverables and changes
The Customer warrants that the Brief is accurate in all respects. As the Job Cost and any pre-set dates for supply of the Deliverables 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 Customer, delay in providing the Agency with materials, information, instructions or authorisations, supply of faulty materials to the Agency by the Customer, or any other circumstances beyond the Agency control, will be subject to extra charges for the Agency time and work and may involve delays in supply. The Customer 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 Brief.
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 Customer 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.
Written approval by the Customer of final copy, layouts, scripts, storyboards, designs and the like will be the Agency authority to proceed with production or publication as appropriate.
When style, type or layout is left to the Agency discretion, changes therefrom by the Customer may at the sole election of the Agency be charged for at the standard hourly rate of £65 per hour. Proofs supplied by the Agency for print related services may not be colour accurate and may not be supplied on the same paper or card as the finished printed job but should be used to check layout and copy.
Where artwork or other material is sent to the Customer for final approval, the Customer shall check it carefully and notify the Agency by e-mail, fax or post of any errors or alterations. The Customer is wholly responsible for spotting and notifying The Agency of any errors or omissions at this stage and The Agency cannot be held responsible for errors not spotted at this stage.
Where errors or omissions are spotted by the customer after approval, the Agency will not be liable in respect of any such errors.
The Customer will be required to sign an “Approval Form” to indicate that the proofs are accurate and ready for production of printed materials.
The Customer 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 the Brief. Such licence shall be automatically terminated if the Customer either:
8.1 does not pay the Job Cost in full by the due date; 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 Customer 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.
Subject to clause 13 below, in so far as use of the Deliverables as per the Contract involves use of third party material, the Agency 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 Customer going beyond the Brief, the Customer 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 Deliverables as per the Brief may involve the Customer in continuing liability to third parties, for example for royalties, licence fees and performance fees. The Agency will endeavour to notify the Customer of these as soon as practicable during the production process.
If, during or after the period of use of the Deliverables envisaged in this Contract, the Customer wishes to use or authorise another to use of the Deliverables (or any part of the Deliverables) in ways outside those contemplated in this 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.
If the Customer supplies to the Agency any image, illustration or logo for inclusion in the Deliverables, they shall be responsible for ensuring that appropriate steps have been taken to ensure no copyright infringement shall take place. The Customer shall indemnify and hold harmless the Agency and the Agency agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including legal fees) arising from any claim, demand or action alleging where copyright infringement has taken place in relation to supplied images, illustrations or logos.
It shall be the sole responsibility of the Customer 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 Customers responsibility to ensure that the Deliverables carry all disclaimers, warnings and public information which any competent lawyer of the Customer in any of the relevant jurisdictions would advise.
Accordingly the Customer agrees to indemnify and hold harmless the Agency and the Agency agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including 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.
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 Deliverables for the purposes of advertising or otherwise promoting the Agency work.
The Customer shall unless otherwise agreed mark all design work supplied as part of the Deliverables with the phrase “Design by The Factory Partnership Limited” (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 Customer 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 Customer 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 if requested by the Agency.
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. All expenses related to a production, for example couriers, dubs, stock, print-outs, scans and overtime, will be invoiced by the Agency and the Customer shall pay these 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 Customer to pay the full amount of the expected expense in advance.
General out of pocket expenses incurred in supplying the Deliverables, such as courier charges, traveling and hotel expenses, will be charged by the Agency at cost and the Customer 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 CustomerS request, the Customer shall pay such expenses by way of settlement of the relevant invoices within 14 days or another pre-agreed timescale of the date of the relevant invoice.
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 Customer has been informed that the goods are awaiting collection or, in cases where the Deliverables include delivery of the goods to the Customer, on the day of delivery to the Customer. If the Customer 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 CustomerS behalf at the CustomerS expense. All charges for such storage, transport and any insurance shall be payable by the Customer forthwith on request.
The Customer 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 Customer 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 Customer shall be deemed to have accepted the goods and to be liable to pay therefor.
The risk in Deliverables shall pass to the Customer upon the commencement of supply or transportation to the Customer or, where the Customer will not accept supply on the date required by the Agency, to 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 CustomerS future use, the Agency reserves the right to levy storage charges and charges for retrieval from storage, which the Customer shall pay within 14 days of the date of the relevant invoice.
We use third party couriers and agree to dispatch the Deliverables within the agreed timescale, once they have left us then we cannot be responsible for the Deliverables.
13. Intellectual Property Rights and domain names
If any Deliverables use any copyrights, design rights (whether registered or unregistered), patents, rights in trade marks (whether registered or unregistered), trading styles or trade names, database rights or other intellectual property rights (“IPRs”) owned by the Customer or under its control, it is agreed that the Agency shall have the right to use or allow use of any such IPRs for the purpose of fulfilling the Agency obligations under the Contract. The Agency shall not gain any rights over such IPRs by virtue of such use, but the Agency shall be entitled to use the IPRs both during and after the production and supply of the Deliverables to promote and advertise its own work.
Where the Customer proposes the use in the Deliverables of any IPRs or domain names, it shall be the CustomerS responsibility to ensure that all IPRs and domain names used in connection with the Deliverables are wherever practicable properly registered and do not infringe any third party rights and that any IPRs or domain names of the Customer or any third party used in the Deliverables, including such IPRs and domain names as are supplied by the Agency as part of the Brief, are used in a manner which neither undermines the CustomerS rights in its IPRs or domain names nor infringes any third party rights.
14. Rejection or cancellation
Unless a rejection fee has been agreed in advance, the Customer 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 Customer will result in the Customer 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.
Where Deliverables are supplied to the Customer 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 Customer in digital form, the Customer may not amend it or otherwise use it for purposes outside those contemplated by this Contract without the Agency express prior written permission.
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 liability to the Customer in contract law or in tort or otherwise howsoever arising in relation to this Contract is limited to the Agency charges for the Deliverables.
The Agency will not be liable to the Customer 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 employees.
Although the Agency will endeavour 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 Customer 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 Customer 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 Customer for the following loss or damage, howsoever caused and even if foreseeable by the Agency:
16.1 economic loss including loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of any description;
16.2 loss arising from any claim made against the Customer by any other person; or
16.3 loss or damage arising from the CustomerS failure to fulfil its responsibilities or any matter under the control of the Customer.
The Agency make no guarantees as to the success of any campaign that involves the use of the Deliverables to generate leads or sales and accepts no liability for unsuccessful marketing using the Deliverables.
17. Agency status
The Agency acts in this Contract as a principal and not as agent for the Customer and will enter into all related contracts as principal.
18. Sub-contracting and assignment
The Agency may sub-contract any or all of its rights or obligations hereunder and may with the CustomerS consent, such consent not to be unreasonably withheld, assign the benefit and burden of its rights and obligations hereunder 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 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,
20.2 if the other shall be involved in any of the situations described at clause 8.2-8.6 above. Such termination shall be without prejudice to the parties accrued rights and liabilities, for example, the Agency entitlement to payment for work done.
21. Matters beyond the Agency 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 employees), weather of exceptional severity 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 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.
23. 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.
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 hand, by post or by fax.
25. 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.