S A J Mitchell Trading as Picture Window - “Picture Window” - Terms and Conditions
1. Intellectual Property Rights (defined as copyright and related rights, rights to inventions, patents, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights)
1.1 All Intellectual Property Rights in or arising out of or in connection with the Deliverables (defined but not limited to as illustrations, designs, artwork, copywriting, branding and marketing materials) shall be owned by Picture Window.
1.2. The copyright in artwork commissioned by the Client shall be retained by Picture Window.
1.3. During the currency of the licence Picture Window shall notify the Client of any proposed exploitation of the artwork for purposes other than self-promotion and the Client shall have the right to make reasonable objections if such exploitation is likely to be detrimental to the business of the Client or the Client’s customer.
1.4. Where use of the artwork is restricted, Picture Window will nominally grant the Client or the Client’s customer a licence for use for other purposes subject to payment of a further fee in line with current licensing rates to be mutually agreed between Picture Window and Client.
1.5. The licence hereby granted to use the artwork is contingent upon Picture Window having received payment in full of all monies due to her/him and no reproduction or publication rights are granted unless and until all sums due under this Agreement have been paid.
1.6. The licence hereby granted is personal to the Client or the Client’s customer (where the Client is acting as an intermediary) and the rights may not be assigned or sub-licensed to third parties without Picture Window’s consent
2. Charges and payment
2.1 The price for Goods and Services shall be the price notified to the Client by Picture Window when the Order is accepted (the Price). The Price is exclusive of all costs and charges of packaging, insurance, transport of the Goods (collectively Delivery Costs), which shall be paid by the Client when it pays for the Goods.
2.2 Unless otherwise agreed and communicated in writing, the Price shall be payable in the following instalments:
(a) Fifty percent (50%) of the Price shall be invoiced to the Client by Picture Window on or after the Commencement Date; and
(b) The remaining Fifty percent (50%) plus Delivery Costs shall be invoiced to the Client by Picture Window once the Goods have been dispatched or delivered electronically.
2.3 For Clients outside of the UK, the Price plus Delivery Costs shall be payable in advance and 100% of the Price shall be invoiced to the Client by Picture Window on or after the Commencement Date. Clients based in the EU must provide a valid VAT number or equivalent to prove that they are exempt from UK VAT liability.
2.4 Picture Window reserves the right to:
(a) increase the price of the Goods, by giving notice to the Client at any time before delivery, to reflect any increase in the cost of the Goods to Picture Window that is due to:
(i) any factor beyond the control of Picture Window (including foreign exchange fluctuations, increases in taxes and duties, and increases in, materials and other manufacturing costs);
(ii) any request by the Client to change the delivery date(s), quantities or types of Goods ordered, or the Brief; or
(iii) any delay caused by any instructions of the Client in respect of the Goods or failure of the Client to give Picture Window adequate or accurate information or instructions in respect of the Goods.
2.5 The Client shall pay each invoice submitted by Picture Window upon receipt. Payment (monies transferred and received) is required within 24 hours of the invoice submitted.
2.6 If the Client fails to make any payment due to Picture Window under the Contract by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 4% per annum above Santander's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
2.7 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Picture Window may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Picture Window to the Client.
3. Confidentiality
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 10 shall survive termination of the Contract.
4. Limitation of liability
4.1
(a) Picture Window shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract ; and
(b) Picture Window's total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed an amount equal to the Price.
4.2 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
5. Termination and Cancellation
5.1 Without limiting its other rights or remedies it may have Picture Window may terminate the Contract by giving the Client not less than 48 hours’ written notice.
5.2 Without limiting its other rights or remedies, Picture Window may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
5.3 Without limiting its other rights or remedies, Picture Window may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Client and Picture Window if the Client fails to pay any amount due under this Contract on the due date for payment.
5.4 If a commission is cancelled by the Client, the Client shall pay a cancellation fee as follows:
(i) 25% of the agreed fee if the commission is cancelled before delivery of concept designs;
(ii) 50% of the agreed fee if the commission is cancelled at the concept designs stage:
(iii) 100% of the agreed fee if the commission is cancelled on the delivery of artwork;
(iv) pro rata if the commission is cancelled at an intermediate stage.
5.5 In the event of cancellation, ownership of all rights granted under this Agreement shall revert to the Illustrator unless the artwork is based on the Client’s visual or otherwise agreed.
5.6 The Client may not cancel any Order except with the written consent of Picture Window and upon terms which will indemnify Picture Window against any loss incurred by Picture Window in respect of such purported cancellation.
6. Force majeure
6.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Picture Window including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Picture Window or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, restraints or delays affecting carriers, fire, flood, storm or default of Picture Window or subcontractors.
6.2 Picture Window shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event provided that Picture Window shall notify the client of the Force Majeure Event within 7 days of such event occurring.
6.3 If the Force Majeure Event prevents Picture Window from providing any of the Services and/or Goods for more than four weeks, Picture Window shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
7. General
7.1 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
7.2 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
7.3 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by Picture Window.
7.4 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
7.5 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).