Standard Terms and Conditions

1. Interpretation

In these terms and conditions:
“Client” means the person firm or company: (i) to whom an estimate is addressed; or (ii) by (or on behalf of) whom the order is placed and to whom the Deliverables and/or Services are supplied.
“Company” means Intermarketing & Communications Limited.
“Conditions” means these terms and conditions as amended from time to time in accordance with clause 2.1.
“Contract” means the contract between the Company and the Client for the supply of Deliverables and/or Services in accordance with these Conditions and the Estimate.
“Deliverables” means the Goods and works of authorship designed, developed, written or prepared by the Company and provided to the Client during the course of the Services.
“Estimate” means the description of the Services (and fees).
“Intellectual Property Rights” means all patents, rights to inventions, utility models, (if any) copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Goods” means the tangible products and does not include services and advice.
“Services” means the creative, design and advertising services supplied by the Company to the Client as set out in the Estimate.

2. General

2.1 Unless otherwise specifically varied in writing by a Director of the Company these Conditions alone shall be deemed to apply to the Contract and Services, all sales, offers (including pitches), estimates made by the Company to the exclusion of all other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Company reserves the right to sub-contract any of the work undertaken on behalf of the Client.

3. Estimates

If the Company provides the Client with an Estimate such an Estimate shall constitute an offer on the part of the Company and such offer shall be valid for a period of [30] days from its date of issue.

4. An Order Without an Estimate

If the Client places an order with the Company without first having received an estimate such an order shall constitute an invitation to treat and shall not be accepted by the Company unless this is communicated to the Client in writing and these Conditions alone shall apply to the Contract.

5. Specifications

5.1 All specifications of Goods and colours are approximate only and shall not form part of the Contract unless expressly so stated in an Estimate.
5.2 Without prejudice to the generality of the foregoing any such specifications are subject to such variations as may from time to time be made by the manufacturers or sub-contractors.
5.3 All dimensions measurements and other particulars are stated in good faith as being approximately correct but deviations there from shall not constitute a breach of the Contract or form the basis of any claim against the Company except as provided in Clause 6 hereof.
5.4 The Client shall be solely responsible for the accuracy of all text specifications drawings and illustrations submitted by the Company to the Client for checking and approval before the work is further progressed and the Client accepts responsibility for final proof-reading and artwork approval including transparencies prints and illustrations whether or not the Client delegates this task to any Director or employee of the Company.

6. Warranty

6.1 The Company hereby represents, warrants and covenants to Client that Company will provide the Services identified in the Contract in a professional and workmanlike manner and in accordance with all reasonable professional standards for such Services.
6.2 Company further represents, warrants and covenants to Client that:
6.2.1 except for third party materials and Client content, the Deliverables shall be the original work of the Company and/or its independent contractors;
6.2.2 in the event that the Deliverables include the work of independent contractors commissioned for the Contract by Company, Company shall have agreements from such contractors granting all necessary rights title and interest in and to the Deliverables sufficient for Company to grant the intellectual property rights provided in this Agreement; and
6.2.3 to the best of Company’s knowledge, the Deliverables provided by Company does not infringe the rights of any party, and use of same in connection with the project will not violate the rights of any third parties. In the event the Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Estimate or this Contract or contrary to the terms and conditions noted herein, all representations and warranties of Company shall be void.
6.3 Except for the express representations and warranties stated in this Contract, Company makes no warranties whatsoever. Company explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules of regulations applicable to the project.

7. Defects in the Deliverables

7.1 This clause 7 shall apply to all Deliverables, supplied by the Company whether copy artwork, digital or other media has been created by the Company or a third party or the Client has supplied the same.
7.2 Subject to clause 7.3 below the Client shall approve and sign off all artwork, films, digital or other media immediately upon receipt.
7.3 The Client may request up to [two (2)] amendments to Deliverables supplied for approval. Any amendments which are requested in addition to the two permitted by this clause shall be charged to the Client in accordance with the rates prevailing on the Company’s current rate card.
7.4 If the Client believes that the Deliverables do not conform to the description contained in the Estimate as to content, quality or quantity, the Client shall notify the Company by post or email within five (5) working days of delivery. If no such notification is received then the Deliverables shall be deemed to be accepted and conform to the description in every respect.
7.5 The Company’s liability for defects in the Deliverables caused by the negligence of the Company shall be limited to the replacement of the Deliverables at no additional cost to the Client provided that such defect is notified in accordance with clause 7.4 above and that the Deliverables have been returned by the Client for inspection by the Company.
7.6 In any event total liability of the Company for defects or errors in the Deliverables shall be limited to a sum equivalent to the invoice price of the Deliverables in respect of which the claim is made.
7.7 Where a complaint has been made in respect of Deliverables alleged to be defective, the Company may suspend further deliveries of any Deliverables under this Contract which may have the same or similar alleged defects until the validity of such complaint or claim has been finally determined and in such event the applicable delivery dates shall be postponed accordingly. 8. Exclusion of Conditions and Representation
Subject to Clause 9 below the warranty contained in Clause 6 hereof is given in lieu of any other conditions or warranties and all other warranties, conditions and terms statutory or otherwise express or implied are to the fullest extent permitted by law hereby excluded for this Contract and no such other conditions or warranties are given by the Company.
Clients should satisfy themselves that the Deliverables meet their requirements. The Company does not make nor is any servant or agent of the Company authorised to make any representation other than those contained herein.

8. Exclusion of Conditions and Representation

Subject to Clause 9 below the warranty contained in Clause 6 hereof is given in lieu of any other conditions or warranties and all other warranties, conditions and terms statutory or otherwise express or implied are to the fullest extent permitted by law hereby excluded for this Contract and no such other conditions or warranties are given by the Company.
Clients should satisfy themselves that the Deliverables meet their requirements. The Company does not make nor is any servant or agent of the Company authorised to make any representation other than those contained herein.

9. Limitation of Liability

9.1 Nothing in these Conditions shall apply to exclude or restrict the Company’s liability for: 9.1.1 death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors; or
9.1.2 fraud or fraudulent misrepresentation.
9.2 Subject to 9.1 and to the other provisions of these Conditions where loss or damage arises from breach of contract, negligence, misrepresentation, breach of statutory duty or otherwise neither the Company nor its employees or agents (on whose behalf the Company contracts for the purposes of this Condition 9) shall be under any liability to the Client or to third parties: 9.2.1 for any loss of profit for indirect or consequential loss or damage however arising; or 9.2.2 to any extent greater or other than the invoice value (exclusive of VAT) of the Deliverables and/ or Services supplied by the Company.
9.3 The Client shall indemnify the Company and its employees and agents against all third party claims relating in any way to Deliverables supplied by the Company or arising from breach of or negligence in connection with the Contract to the extent that there are no proceeds of any public and product liability insurance available (after meeting any liability to the Client covered thereby) to meet such claims.
9.4 The pricing structure of the Company is based upon these limitations of liabilities and indemnities and the Client accepts that this is reasonable and agrees to consider itself obtaining insurance cover for any claims in respect of which the Company is (pursuant to this Condition or otherwise) not liable and for any indemnity liability which may arise in respect of the Client under these Conditions.

10. Delivery and Risk

10.1 Any time or date named by the Company for delivery of the Deliverables and/or performance of the Services is given and intended as an estimate only and the Company shall not be liable to make good any damage or loss whether arising directly or indirectly out of delay in delivery. Time shall not be of the essence in respect of the time of delivery of the Deliverables or performance of the Services.
10.2 The risk in the Deliverables shall pass to the Client:-
10.2.1 At the point of delivery as specified in these Conditions and the Company shall have no responsibility for the safety of the Deliverables thereafter; or
10.2.2 (In the event that delivery is delayed in any of the circumstances referred to in sub-paragraph 10.3 or 10.4 hereof) at the commencement of such delay and the Company shall have no responsibility in respect of the safety of the Deliverables thereafter.
10.3 Unless otherwise specified delivery will take place by delivery at the address specified in the offer. The Client shall accept such delivery and if delivery does not take place then the Client shall at its own expense arrange collection within seven days after notification by the Company to the Client that the Deliverables are ready for collection. The Company shall not be obliged to make delivery until full payment has been made in respect of any outstanding accounts on any contracts between the parties hereto.
10.4 Any delay arising other than as a result of the negligence of the Company shall be the responsibility of the Client and the Client will reimburse the Company on written demand for any costs or losses incurred by the Company arising out of the Client’s failure to accept delivery of the Deliverables or Services.
10.5 After the passing of risk in accordance with sub-paragraph 10.2 hereof the Client shall be responsible for any loss or damage to the Deliverables howsoever caused whilst at the premises of the Company or elsewhere.
10.6 The Client shall accept any delivery of the Deliverables notwithstanding that such quantity delivered may vary within 5% (over or under) of the quantity ordered the same to be charged or deducted. Each delivery shall be deemed to be a separate transaction.
10.7 The Company shall supply the Services to the Client in accordance with the Estimate in all material respects.

11. Passing of Property

11.1 The property in any Goods delivered by the Company to the Client shall remain in the Company until such time as the Client has paid in full for the Services and for any other Goods delivered by the Company to the Client.
11.2 Notwithstanding this reservation of ownership, and subject to sub-clause 11.3 the Client has the Company’s consent to resell any Goods which remain the property of the Company in which event the Client shall remit the proceeds of such sale to the Company up to the amount of any sums then owing under sub-clause 11.1 and until so doing shall hold such proceeds of sale on behalf of the Company in such a way that they are kept separate and are readily identifiable. 11.3 If the Client:
11.3.1 has a bankruptcy order made against the Client; or
11.3.2 goes into liquidation whether voluntary or compulsory; or
11.3.3 makes an arrangement with the Client’s creditors; or
11.3.4 has an administrator or administrative receiver appointed over any of the Client’s assets; or
11.3.5 receives a written demand from the Company to pay overdue sums owed to the Company;
then the Client’s consent from the Company to do the acts referred to in sub-clause 11.2 shall determine and be deemed to have determined forthwith and the Client shall not thereafter sell or use Goods belonging to the Company, save with the consent in writing of the Company, until the Company has been paid in full accordance with sub-clause 11.1.
11.4 The Company may at any time recover and dispose of any Goods in which the Company has retained the property under sub-clause 10.1 and is hereby granted an irrevocable license to enter the Client’s premises to inspect and recover any such Goods.
11.5 The Client agrees to store all Goods that are the property of the Company in such a way that they are readily identifiable as such to insure the same for their full value and to make a note in its accounting records that the Goods are the property of the Company.
11.6 Where the property in the Goods has not passed the Company may nevertheless maintain an action against the Client for the purchase price and all other monies owing to the Company in relation to the Goods notwithstanding Section 49 of the Sale of Goods Act 1979.
11.7 If the Company repossesses or resells any Goods in which the Company has retained the property under sub-clause 11.1 the Company will credit the Client in each case after deduction of all expenses of recovery and/or sale with the lesser of (a) the net value or proceeds of sale (as the Company may elect) of the Goods and (b) the invoiced price (excluding Value Added Tax) to the Client of the Goods.

12. Price

The price is that set out in the Estimate and is provided in respect of the quantity and scope of Services specified in the Estimate exclusive of Value Added Tax or any other fiscal duties and may be varied by the Company provided prior notification is given to the Client together with reasons therefore. [If such variation in price leads to a price increase which is not acceptable to the Client then the Client shall notify the company of this within 1 weeks of the date of notification and the Company shall have the right, without limiting its other rights and remedies to terminate the Contract by giving 1 weeks notice to the Client.

13. Payment

13.1 Payment by cheque shall not be deemed to constitute payment for the purposes of this Contract until the cheque is honoured.
13.2 Payment shall be due in full and cleared funds on the expiry of 30 days from the date of the invoice. 13.3 In the event of payment not being made in full within the said period, interest shall be payable on the whole or such portion of the price as shall be outstanding from time to time at the rate of 2% per 30 days or part thereof.

14. Designs and Copy

14.1 All Intellectual Property Rights including those existing in drawings and works of authorship, designed, developed, written or prepared by the Company in providing the Services, text models or descriptive data and title to copyright designs and trade marks forming the subject matter of any Contract, pitch, presentation or tender process (including all materials submitted/presented to the Client by the Company) shall remain the sole property of the Company or its agents photographers or sub-contractors unless otherwise agreed in writing by a Director of the Company [until payment of the price is received by the Company in full.]
14.2 The Company shall not be required to print anything which it considers is or may be of an obscene, illegal or libelous nature and the Client shall indemnify the Company in respect of any claims costs and expenses arising out of any obscene, illegal or libelous matter printed for the Client.
[14.3 The Company shall not in any circumstances be liable for any loss liability or expense suffered or incurred by the Client by reason of any use or resale of the content provided by the Client which constitutes an alleged or actual infringement of any patent design copyright know-how or other secret information or trademark foreign or domestic vested in a third party and the Client shall indemnify and keep indemnified the Company against all costs and losses resulting from any claims (actual or threatened) which may be made against the Company in respect of any such alleged or actual infringement.]
14.4 If during the course of carrying out any order the Company deems any matter to be libelous or of such nature as may render the Company liable to legal proceedings the Company shall not be bound or required to complete such order and shall not be under any liability for non-completion. The Client shall pay for any work done or expenses incurred by the Company. 15. Client’s Property

15. Client’s Property

The Client must insure any of its property which is supplied to the Company and the Company accepts no liability for any loss or damage howsoever caused.

16. Artwork and Other Materials Held by the Company on Behalf of the Buyer

16.1 All artwork or materials produced by the Company at the request and on behalf of the Client and all such materials supplied to the Company on behalf of the Client (together “the Artwork”) are held at the Client’s risk. The Client must insure any Artwork or materials in the custody of the Company and the Company accepts no liability for any damage or loss howsoever caused.
16.2 The Company reserves the right to destroy any Artwork or materials after a period of twelve months unless written notification not to destroy the Artwork or materials is received one calendar month prior to the date for destruction. On receipt of written notification the Company will at its option either continue to hold the Artwork or materials or return the Artwork or materials to the Client at the cost of the Client. In the event of any materials kept standing by arrangement with the Client, rental may be charged at such an amount as the Company deems reasonable. 16.3 The Company may reject any Artwork or other materials supplied or specified by the Client which appear to the Company to be unsuitable. Any additional costs incurred if such materials supplied or specified are found unsuitable during production may be charged to the Client. Where materials are so supplied or specified the Company will not accept responsibility for imperfect work caused by defects in or unsuitability of materials so supplied or specified. The quantities supplied shall be adequate to cover normal spoilage.

17. General Lien

The Company shall have a general lien upon all goods and property of the Client in the hands of the Company in respect of all unpaid debts due to the Company from the Client howsoever arising and in the event of any debt being unpaid within 14 days after its due date the Company may on giving 7 days notice to the Client dispose of the goods or property of the Client as the Company thinks fit. The proceeds of any sale shall be applied in reduction of the amount owing by the Client to the Company.

18. Cancellation/Termination