123 DESIGN TERMS OF BUSINESS
1.1 In these Terms:
“Client” means the person named on the Specification Sheet for whom 123 Design has agreed to provide the Specified Service in accordance with these Terms;
“Client Dependencies” means the materials and tasks listed in the Specification Sheet for provision or performance by the Client to enable 123 Design’s performance of the Specified Service (and shall also include the Client’s completion of a written proof approval in accordance with paragraph 2.4);
“Contract” means the contract for the provision of the Specified Service, which shall comprise these Terms and the Specification Sheet;
“Document” includes, in addition to any written document, a map, plan, design, picture or other image, or any other record of any information in any form;
“123 Design” means Janice Tye of 7 Russell Road, Bristol BS6 7UB;
“123 Design’s Charges” means the charges for the Specified Service, as set out in the Specification Sheet (including any sums stated there as being due to be paid on by 123 Design to the printers);
“in Writing” means a document signed by an authorised representative for and on behalf of both 123 Design and the Client;
“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 123 Design relating to the Specified Service;
“Specification Sheet” means the sheet on the reverse of which these Terms appear (including any annexure, initialled and dated by each party’s authorised representative by both parties on each page);
“Specified Service” means the service to be provided by 123 Design for the Client and referred to in the Specification Sheet;
“Terms” means these Terms of Business.
1.2 The headings in these Terms are for convenience only and shall not affect their interpretation.
2. Supply of the Specified Service
2.1 123 Design shall provide the Specified Service to the Client subject to these Terms. Any changes or additions to the Specified Service or these Terms must be agreed in Writing by 123 Design and the Client.
2.2 The Client shall at its own expense supply 123 Design with all necessary Documents or other materials, and all necessary data or other information relating to the Specified Service (including but not limited to items referred to in the Client Dependencies), within sufficient time to enable 123 Design 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 and insure against its accidental loss or damage. 123 Design shall have no liability for any such loss or damage, however caused. All Output Material shall be at the sole risk of the Client from the time of delivery to the Client (or to the person or place named by the Client).
2.4 The Specified Service shall be provided in accordance with the Specification Sheet, subject to the Client’s timely fulfilment of the Client Dependencies. These include the requirement on the Client to complete and provide to 123 Design a written proof approval in the form required by 123 Design, prior to 123 Design’s submission of designs to the printers.
2.5 123 Design may at any time without notifying the Client make any changes to the Specified Service which are necessary to comply with any applicable statutory requirements, or which do not materially affect the nature or quality of the Specified Service.
3.1 The Client shall pay 123 Design’s Charges and any additional sums which are agreed between 123 Design and the Client for the provision of the Specified Service (or any amendment to it which has been agreed in Writing), or as a condition of 123 Design’s consent under paragraph 4.2, or which, in 123 Design’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.
3.2 123 Design may invoice the Client following the end of each month in which the Specified Service is provided, or at other times agreed with the Client.
3.3 123 Design’s Charges and any additional sums payable shall be paid by the Client (together with any applicable Value Added Tax, and without any deduction whatsoever) within 28 days of the date of 123 Design’s invoice.
3.4 If payment is not made on the due date, 123 Design shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 5 per cent above the base rate from time to time of Barclays Bank plc from the due date until the outstanding amount is paid in full. The Client should also be liable for 123 Design’s costs incurred in collecting any outstanding charges.
4. Rights in Input Material and Output Material
4.1 Any copyright or other intellectual property rights in:
4.1.1 any Input Material shall belong to the Client;
4.1.2 any Output Material shall belong to 123 Design, but the Client shall be entitled to use the Output Material in its own business by way of a non-exclusive licence, subject always to paragraph 4.2, and subject to 123 Design having been paid in full all sums due under the Contract.
4.2 The Client shall not sell, nor grant any sub-licence to use, Output Material to any person (whether as part of another product or otherwise) without 123 Design’s prior written consent. The grant of such consent shall be entirely at 123 Design’s discretion, and the Client accepts that such consent may be given subject to conditions (for instance relating to royalty payments).
4.3 Any Input Material or other information provided by the Client which is so designated by the Client shall be kept confidential by 123 Design, and all Output Material or other information provided by 123 Design which is so designated by 123 Design shall be kept confidential by the Client. Each party shall act reasonably in making these designations, and such requirements of confidentiality shall not apply to any Documents or other materials, data or other information which are public knowledge at the time when such information is provided by either party, and shall cease to apply if at any future time such information becomes public knowledge through no fault of the other party.
4.4 The Client warrants that any Input Material and its use by 123 Design 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 123 Design against any loss, damages, costs, expenses or other claims arising from any such infringement.
5.1 123 Design 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 shortcomings in a design which has been approved by the Client in a proof approval under paragraph 2.4.
5.2 123 Design’s liability to the Client in connection with the Contract and/or the Specified Service and any Output Material (whether for negligence, breach of contract or otherwise) shall not exceed the VAT–exclusive amount of 123 Design’s Charges for the provision of the Specified Service (excluding any sums identified in the Specification Sheet as due to be paid on to the printers) which have been actually paid by the Client to 123 Design during the 12 months prior to the first event giving rise to 123 Design’s liability. However, 123 Design shall have no liability to the Client for any loss of profit, loss of opportunity, loss of business or any other indirect loss.
5.3 Nothing in this paragraph 5 or the Contract as a whole shall limit 123 Design’s liability for death or personal injury caused by 123 Design’s negligence.
5.4 123 Design 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 123 Design’s obligations in relation to the Specified Service, if the delay or failure was due to any cause beyond 123 Design’s reasonable control.
6.1 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 Terms and fails to remedy the breach within 45 days after being required by written notice to do so, or if the other goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed.
6.2 Any termination or expiry of the Contract shall not affect any rights or liabilities of either party existing at that time, including the Client’s liability to pay charges which 123 Design has invoiced (including any invoice issued within the 45 day period following a notice under paragraph 6.1). Termination or expiry will not affect the continuance in force of any provision of the Contract which is expressly or impliedly intended to continue in force after such termination, which shall include without limitation paragraphs 1, 3 (to the extent relevant), 4, 5, 6 and 7.
7.1 These Terms together with the terms 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, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
7. 2 A notice required or permitted to be given by either party to the other under these Terms shall be a written communication 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 Terms is held by any Court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
7.5 English law shall apply to the Contract, and the parties agree to submit to the non-exclusive jurisdiction of the English Courts.
123 Design reserves the right to make reasonable amendments to these terms and conditions, such changes shall be deemed to come into effect within 28 days of us notifying you of the changes by email.