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 ANTONIA CHITTY from the Client (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 Client.
In these terms and conditions the following words shall have the meanings given in this clause:
2.1 ‘ANTONIA CHITTY’ means Ms Antonia Chitty trading as ACPR
2.2 ‘Client’ means the person, firm or company described as such overleaf;
2.3 ‘Contract’ means the contract consisting of the front and back of this form and concluded by either the Client signing overleaf and returning it to ANTONIA CHITTY or ANTONIA CHITTY starting work on the Deliverables;
2.4 ‘Deliverables’ means the services and/or materials to be supplied by ANTONIA CHITTY under this Contract, described in brief overleaf;
2.5 ‘Job Cost’ means the fee to be charged by ANTONIA CHITTY for the Deliverables and specified on the front of this form;
2.6 ‘Project’ means the job described overleaf; 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 ANTONIA CHITTY’s obligations
ANTONIA CHITTY will use its reasonable care and skill in the production and supply to the Client of the Deliverables and any other requirements identified overleaf.
In return for ANTONIA CHITTY’s production and supply of the Deliverables the Client shall pay the Job Cost in accordance with the payment schedule set out overleaf. ANTONIA CHITTY reserves its rights under the Late Payment of Commercial Debts (Interest) Act 1998 in relation to late payment.
ANTONIA CHITTY reserves the right to require the Client to pay the total Job Cost up front before ANTONIA CHITTY commences any work. If a final Job Cost has not been agreed at the time of concluding the Contract, ANTONIA CHITTY will require the Client to pay a percentage of the estimated total Job Cost in advance to cover ANTONIA CHITTY’s time attending meetings and/or producing Deliverables in advance of a final sign-off by the Client of the budget.
5 Deliverables and changes
As the Job Cost and any pre-set dates for supply of the Deliverables will be agreed with the client, any changes to it after the conclusion of the Contract, whether resulting from alterations by the Client, delay in providing ANTONIA CHITTY with materials, information, instructions or authorisations, supply of faulty materials to ANTONIA CHITTY by the Client, or any other circumstances beyond ANTONIA CHITTY’s control, will be subject to extra charges for ANTONIA CHITTY’s time and work and may involve delays in supply. The Client will pay these extra charges and reimburse ANTONIA CHITTY for any third party charges or expenses incurred by ANTONIA CHITTY.
Unless otherwise agreed in writing ANTONIA CHITTY 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 ANTONIA CHITTY 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.
Where artwork or other material is sent to the Client for final approval, the Client shall check it carefully and notify ANTONIA CHITTY by e-mail, fax or post of any errors or alterations. ANTONIA CHITTY will use its reasonable endeavours to effect any changes so notified but ANTONIA CHITTY reserves the right to charge extra if any of these alterations either go beyond the original Brief or are notified to ANTONIA CHITTY more than 3 working days after their supply to the Client. Where notification of errors is either delayed in this way or does not occur at all before publication, ANTONIA CHITTY will not be liable in respect of any such errors. ANTONIA CHITTY 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. ANTONIA CHITTY cannot guarantee that any or all colours will be exactly replicated in the final version as published.
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. Such licence shall be automatically terminated if the Client 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 Client wishes to use the Deliverables in ways going beyond the parameters overleaf, it must approach ANTONIA CHITTY for prior written consent.
In so far as use of the Deliverables as per the Contract involves use of third party material, ANTONIA CHITTY 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 ANTONIA CHITTY unless and until any assignment or other disposition of the Rights is agreed between the parties in writing.
For the avoidance of doubt, where ANTONIA CHITTY 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 Deliverables may involve the Client in continuing liability to third parties, for example for royalties, licence fees and performance fees. ANTONIA CHITTY will endeavour to notify the Client of these as soon as practicable during the production process.
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.
Accordingly the Client agrees to indemnify and hold harmless ANTONIA CHITTY and ANTONIA CHITTY’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.
10 Publicity and examples
Notwithstanding the licence described in clause 8 above or any other disposition of the Rights agreed between the parties, ANTONIA CHITTY shall have a continuing right to use the Deliverables for the purposes of advertising or otherwise promoting ANTONIA CHITTY’s work.
The Client shall unless otherwise agreed mark all design work supplied as part of the Deliverables with the phrase ‘Design by (insert name of Agency)’ (or appropriate variants as agreed) in a suitable place. ANTONIA CHITTY 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 ANTONIA CHITTY with 10 finished printed copies of any production run or other published material derived from the Deliverables.
ANTONIA CHITTY 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 ANTONIA CHITTY at cost and the Client shall pay these invoices within 14 days of the date of the 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 Client has been informed that the goods are awaiting collection or, in cases where the Deliverables include delivery of the goods 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 ANTONIA CHITTY 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 ANTONIA CHITTY 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 ANTONIA CHITTY 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.
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 ANTONIA CHITTY, to temporary storage arranged by ANTONIA CHITTY.
13 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 ANTONIA CHITTY shall have the right to use or allow use of any such Marks for the purpose of fulfilling ANTONIA CHITTY’s obligations under the Contract. ANTONIA CHITTY shall not gain any rights over such Marks by virtue of such use, but ANTONIA CHITTY 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 ANTONIA CHITTY 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 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 ANTONIA CHITTY is able to avoid liability for within its existing contractual commitments to suppliers.
Where Deliverables are supplied to the Client on computer disks or other electronic storage method, then ANTONIA CHITTY 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 ANTONIA CHITTY’s express prior written permission.
ANTONIA CHITTY acceptsliability for its own negligence or faults in the Deliverables, but only to the extent stated in this clause.
ANTONIA CHITTY does not exclude or restrict its liability for death or personal injury resulting from negligence.
ANTONIA CHITTY’s liability to the Client in contract law or in tort or otherwise howsoever arising in relation to this Contract is limited to ANTONIA CHITTY’s charges for the Deliverables.
ANTONIA CHITTY 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 ANTONIA CHITTY’s employees.
Although ANTONIA CHITTY 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, ANTONIA CHITTY 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.
ANTONIA CHITTY 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 ANTONIA CHITTY, ANTONIA CHITTY 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 ANTONIA CHITTY is not liable to the Client for the following loss or damage, howsoever caused and even if foreseeable by ANTONIA CHITTY:
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 Client by any other person; or
16.3 loss or damage arising from the Client’s failure to fulfil its responsibilities or any matter under the control of the Client.
17 ANTONIA CHITTY’s status
ANTONIA CHITTY acts in this Contract as a principal and not as agent for the Client and will enter into all related contracts as principal.
18 Sub-contracting and assignment
ANTONIA CHITTY 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.
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 writingto 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.
21 Matters beyond ANTONIA CHITTY’s reasonable control
ANTONIA CHITTY is not liable for any breach of this Contract caused by matters beyond its reasonable control including acts of God, fire, lightning, explosion, terrorism, war, disorder, flood, industrial disputes (whether or not involving ANTONIA CHITTY’s 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 or by post.
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.