1. Definitions and Interpretation
1.1 “The Company” means NG15 Ltd
1.2 “Contract” means the contract made between the Company and the Client for the provision of Marketing Services and production of Promotional Material and includes these conditions
1.3 “The Client” means any person, partnership, un-incorporated business or incorporated company to whom the Company agrees to sell Promotional Material and provide marketing Services
1.4 “Marketing Services” means the marketing services which the Company shall provide to the Client
1.5 “Order” means the Client’s purchase order for the Promotional Material referred to on the Company’s quotation and/or the engagement of the Company to provide Marketing Services
1.6 “Promotional Material” means the design artwork and promotional material which the Company shall prepare and deliver to the client
1.7 “Rights” means all vested contingent and future rights of copyright and all rights in the nature of copyright and all accrued rights of action and all other rights of whatever nature in and to the Promotional Material whether now known or in the future created to which the Company is now or may at any time be entitled by virtue of or pursuant to any of the laws in force in each and every part of the world
1.8 “Timetable” means the timetable agreed by the Company and the Client for performance of the Contract
1.9 Any reference in these conditions to any provision of statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time
1.10 The singular shall include the plural and male shall include female and vice versa
1.11 Words importing any gender shall include all other genders
1.12 References to persons shall include bodies of persons whether corporate or incorporate
1.13 The headings in these conditions are for convenience only and shall not affect their interpretation
2. Formation of Contract
2.1 These conditions shall apply to all Contracts to the exclusion of all other terms and conditions which the Client may purport to apply under any
purchase order confirmation of order or other similar document and shall prevail over any inconsistent terms implied by law or by trade custom practice or course of dealing
2.2 All Orders shall be deemed to be an offer by the Client made pursuant to these conditions and no contract shall come into existence until the Order has been accepted in writing by a Director or an authorised signatory on behalf of the Company
2.3 Any quotation shall be regarded as an invitation to treat and no Order arising out of the quotation shall be accepted save by an acknowledgement in writing signed by a Director or authorised signatory on behalf of the Company
2.4 No modification of these conditions shall be effective unless the same is in writing and signed by a Director or authorised signatory of the Company
3. Fees
3.1 Unless otherwise stated in the quotation or acceptance by the Company all fees quoted are in Pound Sterling and are exclusive of any applicable Value Added Tax for which the Client shall be additionally liable at the rate ruling on the date of the VAT invoice
3.2 The fees are not subject to any discount whether trade or cash except such as may be expressly specified in the acceptance of the Order and the Client shall not be entitled to set off or deduct any sum there from
4. Duty of Care and Performance of the Contract
4.1 The Company shall in providing the Marketing Services and Promotional Material exercise reasonable skill and care in conformity with the Company’s normal practice
4.2 The Company shall give reasonable notice in writing to the Client of any circumstances which make it impracticable for the Company to perform the Contract in accordance with the Timetable
4.3 The Company shall not be subject to directions from the Client as to the way it shall perform to Contract
5. Information
5.1 The Client shall name the person who shall exercise the powers of the Client under the Contract and through whom all instructions to the Company shall be given
5.2 The Client shall provide to the Company such further information as the Company shall reasonably and necessarily request for the performance of the Contract: all such information to be provided free of charge and at such times as shall permit the Company to comply with the Timetable
5.3 The Client accepts that the Company will rely on the accuracy, sufficiency and consistency of the information supplied by the Client
6. Variation of Contract
6.1 The Company shall inform the Client upon it becoming apparent that there is any incompatibility between any of the Client’s requirements under the Contract: or between the Client’s requirements under the Contract: or between the Client’s requirements and the Timetable: or any need to vary any part of them. The Company shall confirm in writing any agreement reached
6.2 Where any change is made to the Marketing Services and/or Promotional Material required by the Client or to the Timetable the fees quoted shall be varied
7. Variation of Fees
7.1 Where the Company is involved in extra work and/or expense caused by:
7.2 The Company (at the written request of the Client sent to the Company’s registered office) agreeing to any departure from or variation to the Contract specifications upon which the Company’s quotation was based: or
7.3 The Company suspending work on any Contract upon the instructions of the client or because the Client fails to give such information or instructions to the Company as it may reasonably require in order to perform the Contract, or as a result of any breach on the part of the Client: or
7.4 Delay or for any reason beyond the Company’s control: then in addition to the fee quoted the Client shall be charged at the current charging rate of the Company for all extra work and for any other disbursements or out of pocket expenses including costs incurred by the Company as the result of the suspension variation or delay
7.5 Where fees and/or expenses are varied under these conditions the additional or varied fees and/or expenses shall be confirmed by the Company in writing
8. Force Majeure
In the event that the Company shall be delayed in or prevented from carrying out any of its obligations under a Contract as a result of any cause beyond its control including (but not by way of limitation) war, threat of war, sabotage, invasion, hostilities and civil war, strife or commotion strikes, lock-outs, acts of god or governmental acts, breakdown or plant failure of third party to deliver goods or materials or provide services storm flood, fire or any other cause the Company shall be at liberty at its election to suspend the Contract in which case it shall be relieved of all obligations and liabilities incurred under such Contract insofar as and for so long as the fulfilment of such obligations and liabilities is thereby prevented, frustrated or impeded or to cancel the Contract without incurring any further liability whatsoever
9. Terms of Payment
9.1 Payment of fees or any other sum due under the Contract shall be made to the Company within 30 days of the date of the Company’s invoice
9.2 If the Client fails to discharge the Company’s fees or make any other payment due in accordance with the Contract within 30 days of the date of invoice the Client shall in addition pay interest upon the balance outstanding at 5% above the National Westminster plc minimum leading rate from time to time in force from the date of default until the date that payment is received
9.3 The Client may not withhold or reduce any sum payable to the Company under the Contact by reason of claims or alleged claims against the Company. All rights of setoff which the Client may otherwise exercise is common law are hereby expressly excluded
9.4 If any item or part of an item of any account is disputed or subject to question by the Client, the payment by the Client of the remainder of that account shall not be with held on those grounds
10. Suspension and Termination
10.1 No Order which had been accepted by the Company may be cancelled by the Client except with the agreement in writing of the Company and on terms that the Client shall pay to the Company a cancellation fee being the percentage of the Contract price which is proportional to the degree of completion of the Contract at the sate of cancellation such percentage to be determined but the Company
10.2 The Client shall have no rights in the Promotional Material following cancellation of the Contract
10.3 In the event of the Client’s being in default of payment of any fees, expenses and/or disbursements, the Company may at its sole discretion suspend or terminate the performance of any or all the Contract on giving notice in writing to the Client
10.4 On suspension or termination of the Contract howsoever occurring the Company shall be entitled to and shall be paid fees as assessed by the Company for all Marketing Services and all Promotional Material provided to the time of suspension or termination together with expenses and disbursements reasonably incurred to that time
10.5 During any period of suspension the Company shall be reimbursed by the Client for expenses, disbursements and other costs reasonably incurred as a result of the suspension
10.6 On the resumption of a suspended service within six months, fees paid prior to resumption shall be treated as payments on account of the total amount due under the Contract
11. Confidentiality
The Company agrees to maintain secret and confidential all confidential information obtained by it pursuant to the Contract and prior to and in contemplation of it and all other information that it may acquire from the Client in the course of the Contract and to disclose the same only to the extent that such information has come into the public domain or that such disclosure is reasonably necessary for the purposes of the Contract or is required by law
12. Intellectual Property
12.1 The Client acknowledges that unless otherwise specifically agreed all Rights in any works produced by the Company remain the property of the Company and that if it is specifically otherwise agreed the Rights in any works produced by the Company remain its property until all payments due under the Contract are made to the Company in full
12.2 The Client will not cause or permit anything which may damage or endanger the Rights or the Company’s title thereto or assist or allow others to do so and will use any Promotional Material or works only to the extent and within the scope of any license granted by the Company and shall make payments of any license or royalty fee agreed to be paid to the Company punctually
12.3 The Client shall not assent any properties claim over the Rights in the Promotional Material or works contrary to that of the Company
12.4 The Client will promptly notify the Company in the event that it becomes aware of or suspects that there may be any infringement of the Rights by any third party and shall join with the Company so far as may be reasonable to do so to take such steps as may be required by the Company to prevent such infringement
12.5 The Client warrants that the use of reproduction of any image or material provided to the Company in the brief or forming part of the engagement shall not constitute a breach of any third party Copyright or other Intellectual Property Rights and under takes to fully and effectually indemnify the Company from and against all actions proceedings losses costs claims demands and expenses arising from any breach of such warranty
13. Moral Rights
The Company asserts to the Client its assignees licenses and successors in title its moral right to be identified as the author of the Promotional Material in accordance with the Copyright Designs and Patents Act 1988 Sections 77 and 78
14. Notification of Defects and Liability
14.1 The Company reserves the right to substitute suitable alternative colours or materials images or media slots without recourse to the Client where colours, materials, images or media slots which were available at the date of the Order are no longer available or cannot be obtained at comparable prices to those prevailing at the date of the Order when the Contract is performed
14.2 Subject as expressly provided in these conditions all warranties, conditions or other terms applied by statute or common law are excluded to the fullest extent permitted by law
14.3 Any defect alleged in the quality of the proofs of the Promotional Material shall be notified to the Company in writing specifying the defect alleged within three days from the date of supply failing which the Client shall not be entitled to reject the Promotional Material and the Company shall have no liability for such defect and the Client shall be bound to make all payments under the contract as if the Promotional Material has been supplied in accordance with the Contract
14.4 Where any valid claim in respect of any of the Company’s performance of the Contract which is based on any defect in quality or condition of the Promotional Material or the Company’s failure to meet the specification in the Order is notified to the Company in accordance with these conditions the Company shall be entitled to replace the Promotional material (or part in question) or perform any work of rectification free of charge or at the Company’s sole discretion refund to the Client any payment made under the Contract (or a proportionate part thereof) but the Company shall have no further liability to the Client PROVIDED ALWAYS that where reasonably practicable the said rectification or replacement will only be carried
out by persons employed by the ~ Company between Monday and Friday during ordinary working hours and that no work on the Promotional Material shall have been carried out by any other person otherwise the said undertaking shall become null and void
15. Limitation of Liability
15.1 The Company’s liability hereunder for any breach of the terms of these conditions whether as damages or otherwise shall be limited to the Contract fee
15.2 The Company shall not under any circumstances be liable for any consequential or economic loss to the Client
16. Arbitration
If at any time any question dispute or difference whatsoever shall arise between the parties in relation to or in connection with the Contract either party may give to the other notice in writing of the existence of such question, disputer or difference and the same shall be referred to the arbitration of a person to be mutually agreed upon. Failing agreement by both parties over the appointment of a suitable referee the difference or dispute shall be referred to the arbitration of two persons (one to be nominated by each party) or their mutually agreed umpire in accordance with the provisions of the Arbitration Act 1996
