1. Interpretation
1.1 In these Conditions:
“APPROVAL FORM” means the form to be issued to and signed by the Client to approve the Output Material
“CLIENT” means the person named on the Specification Sheet for whom the Supplier has agreed to provide the Specified Service in accordance with these Conditions
“CONTRACT” means the contract for the provision of the Specified Service
“DOCUMENT” includes, in addition to a document in writing, any plan, graph, drawing or photograph, any proof, artwork, negative or other device embodying visual images and any disc, tape or other device embodying any other data
“INPUT MATERIAL” means any Documents or other materials and any data or other Information provided by the Client relating to the Specified service
“OUTPUT MATERIAL” means any Documents or other materials and any data or other information provided by the Supplier relating to the Specified Service
“SPECIFICATlON SHEET” means the sheet to which these Conditions are appended
“SPECIFIED SERVICE” means the service to be provided by the Supplier for the Client and referred to in the Specification Sheet
“SUPPLIER” means WARM Creatives Limited and any or Subsidiaries (registered in England and Wales under number 7027768)
“SUBSIDIARIES” means businesses and or brand supplying goods and services to Clients named other than WARM Creatives Limited
“SUPPLIER’S STANDARD CHARGES” means the charges shown in the Supplier’s brochure or other published literature, digital, web based or otherwise, relating to the Specified service from time to time
1.2. The headings in these conditions are for convenience only and shall not affect their interpretation
2. Supply of the Specified service
2.1. The Supplier shall provide the Specified Service to the Client subject to these conditions which shall govern the Contract to the exclusion of any other terms and conditions including any conditions on any purchase order of the Client. Any changes or additions to the Specified Service or these conditions must be agreed in writing by the Supplier and the Client
2.2. The Client shall at its own expense supply the Supplier with all necessary Documents or other material and all necessary data or other information relating to the Specified Service, within sufficient time to enable the Supplier to provide the Specified Service in accordance with the Contract. The Client shall ensure the accuracy of all Input Material
2.3. The Client shall at its own expense retain duplicate copies of all Input Material. The Supplier shall have no liability for any accidental loss or damage to Input Material, however caused. All Output Material shall be at the sole risk of the Client from the time of delivery to or to the order of the Client
2.4. The Specified Service shall be provided in accordance with the Specification Sheet and otherwise in accordance with the Supplier’s current brochure or other published literature
relating to the Specified Service from time to time, subject to these Conditions
2.5. Further details about the Specified Service, and advice or recommendations about its provision or utilisation, which are not given in the Supplier’s brochure or other promotional literature, may be made available on written request
2.6. The Supplier may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Specified Service without any liability to the Client
2.7. The Supplier may at any time without notifying the Client make any changes to the Specified Service which are necessary to comply with any applicable safety or other statutory
requirements, or which do not materially affect the nature or quality of the Specified Service
2.8. The Supplier will issue the Approval Form to the Client which must be signed and returned by the Client within 7 days approving the Output Material or setting out any errors, changes or alterations required
2.9. Once the Approval Form has been submitted any additional changes required by the Client not included on the Approval Form will be charged by the Supplier to the Client in addition to the Suppliers Standard Charges at the Suppliers hourly rate from time to time and the Client shall pay such additional charges in accordance with the provisions of clause 3
3. Charges
3.1. Subject to any special terms agreed, the Client shall pay the Supplier’s Standard Charges and any additional sums which are agreed between the Supplier and the Client for the provision of the Specified Service or which, in the Supplier’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Client including any changes to the Output Material required by the Client after the Client has signed and returned the Approval Form
3.2. The Supplier shall be entitled to vary the Supplier’s Standard Charges from time to time by giving not less than two months’ written notice to the Client
3.3. All Charges quoted to the Client for the provision of the Specific Service shall include one set of proofs. Additional set(s) of proofs wiII be charged at the Supplier’s Charges from time to time
3.4. All charges quoted to the Client for the provision of the Specified Service are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time
3.5. The Supplier shall be entitled to invoice the Client for the Specified Service once the Client has returned the Approval Form or at other times agreed with the Client and the Client shall be obliged to pay the Standard Charges even if any changes are requested to the Output Material and in such event the Supplier shall be entitled to invoice the Client for the additional charges in accordance with clause 2.9. at the end of each month in which the additional charges are effected by the Supplier and if the Client fails to return the Approval Form the Supplier shall be entitled to invoice the Client following the end of each month in which the Specified Service is provided
3.6. The Supplier’s Standard Charges and any additional sums payable shall be paid by the Client (together with any applicable value Added Tax, and without any set-off or other deduction) within 30 days of the date of the Supplier’s invoice
3.7. If payment is not made on the due date, the Supplier shall be entitled, without limiting any other results it may have, to charge Interest on the outstanding amount (both before and after any judgment) at the rate of 4% above the base rate from time to time of the Royal Bank of Scotland from the due date until the outstanding amount is paid in full
4. Rights in Input Material and Output Material
4.1. The property and any copyright or other intellectual property rights in:
4.1.1. any Input Material shall belong to the Client
4.1.2. subject to clause 4.6. any Output Material that is not original shall belong to the Supplier and shall not pass to the Client until the Supplier has received in cleared funds payment in full of the Suppliers Standard Charges and any additional sums due
4.1.3. any Output Material that is original shall belong to the Supplier subject only to the right of the Client to use the Output Material that Is original for the purposes of utilising the Specified Service and the Client shall not destroy, damage, alter, modify, retouch or change in any way original Output Material without the prior written consent of the Supplier.
4.1.4. any unapproved Output Material shall belong to the Supplier
4.2. In relation to the Output Material referred to in clause 4.1.2:-
4.2.1. until such time as the property in the Output Material passes to the Client, the Client shall hold such Output Material as the Suppliers fiduciary agent and bailee and shall keep such Output Material separate from those of the Client and third parties and properly stored, protected and insured and identified as the Supplier’s property but shall be entitled to use the Output Material in the ordinary course of its business
4.2.2. until such time as the property in such Output Material passes to the Client the Supplier shall be entitled at any time to require the Client to deliver up the Output Material to the Supplier and, if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where such Output Material is stored and repossess the Output Material
4.2.3 All Material relating to the development of Output Material remain the property of the supplier and does not belong to the client unless specific written agreement has been confirmed by the supplier. This may be passed on and be
4.3. Any input Material or other information provided by the Client and any Output Material which is so designated by the Client shall be kept confidential but the foregoing shall not apply to any Documents or other materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party
4.4. The Client warrants that any input Material and its use by the Supplier for the purpose of providing the Specified Service will not infringe the copyright or other rights of any third party, and the Client shall Indemnify the Supplier against any loss, damages, costs, expenses or other claims arising from any such infringement
4.5. Subject to paragraph 4.4.the Supplier warrants that any Output Material and its use by the Client for the purposes of utilising the Specified Service will not infringe the copyright or other rights of any third party
4.6. Subject to clause 4.3, the Supplier reserves the right to and the Client authorises the Supplier to use any Output Material that is not original for marketing and promotional purposes
5. Warranties and Liability
5.1. The Supplier warrants to the Client that the Specified Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Specification and at the intervals and within the times referred to in the Specification Sheet. Where the Supplier supplies in connection with the provision of the Specified Service any goods or service (including Output Material) supplied by a third party the Supplier does not give any warranty, guarantee or other term or accept any liability as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods or service to the Supplier
5.2. The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, Illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client or for any changes errors or alterations to the Specified Service following the signing off of the Approval Form by the Client
5.3. Except in respect of death or personal injury caused by the Supplier’s negligence, or as expressly provided in these Conditions, the Supplier shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (Whether caused by the negligence of the Supplier, its servants or agents or otherwise) which arise out of or in connection with the provision of the Specified Service or their use by the Client, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the amount of the Supplier’s charges for the provision of the Specified Service, except as expressly provided in these Conditions
5.4. The Supplier shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to the Specified Service, if the delay or failure was due to any cause beyond the Supplier’s reasonable control
6. Termination
6.1. Subject to clauses 6.2. and 6.3. the Client shall be entitled to terminate the Contract at any time by giving not less than one months’ written notice to the Supplier
6.2. Any termination of the contract by the Client will only be effective from the date that written notice of termination is received by the Supplier
6.3. If the Contract is terminated by the Client prior to completion of the Specified Service the following Charges will be payable by the Client to the Supplier:-
6.3.1. 40% of the Supplier’s Standard Charges if termination occurs before delivery of the visuals
6.3.2. 60% of the Supplier’s Standard Charges if termination occurs at the visual stage
6.3.3. 100% of the Supplier’s Standard Charges if termination occurs at delivery of the artwork stage plus any additional sums which in the Suppliers sole discretion are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any input Material or other cause attributable to the Client and all Charges will be payable in accordance with all the provisions of clause 3
6.4. Either party may (Without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these Conditions and (if capable of remedy) falls to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an Individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its Creditors or has a receiver or administrator appointed
7. General
7.1. These Conditions (together with the terms, if any, set out in the Specification Sheet) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law
7.2. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice
7.3. No failure or delay by either party in exercising any of its rights under the Contract shall be Deemed to be a waiver of that right, and no waiver by either party of any breach of the contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision
7.4. If any provision of these conditions is held by any competent authority to be invalid or Unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected
7.5. Any dispute arising under or in connection with these conditions or the provision of the Specified Service shall be referred to arbitration under the terms of the Arbitration Act 1996
7.6. English law shall apply to the Contract, and the parties agree to submit to the non-exclusive jurisdiction of the English Courts
