2. Definitions: In these Terms and Conditions the following words shall have the meanings given in this clause:
3. The Agency’s obligations: The Agency will use reasonable care and skill in the production and supply to the Advertiser of the Deliverables as per the Brief.
4. Payment: In return for the Agency’s production and supply of the Deliverables the Advertiser shall pay the Services Cost. All Service Costs may be invoiced directly by the Agency or by the Client as notified by the Agency from time to time. The Advertiser will pay such invoice within 30 days of receipt (“due date”). Without prejudice to any other right or remedy that it may have, if the Advertiser fails to pay the invoice on the due date, the Agency may charge the Advertiser interest at 4% per year above the base rate of the Agency’s bank from time to time accruing daily and compounded annually on every invoice overdue for payment calculated from the date of the invoice until the date of payment whether before or after judgment, and may suspend all of its obligations hereunder until payment has been made in full. The Agency reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. All rates, quotations or prices given are exclusive of VAT at the prevailing rate unless indicated otherwise. If the Agency is subject to any of the events listed in 2-5 in Clause 8, and if requested by the Client, the Advertiser will pay any outstanding Service Costs directly to the Client.
5. Brief, Deliverables and Changes: The Advertiser warrants that the Brief is accurate so far as is possible. As the Services Cost and any pre-set dates for supply of the Deliverables will be agreed on the basis of the Brief, any changes to it after the conclusion of the Agreement, whether resulting from alterations by the Advertiser, delay in providing the Agency with materials, information, instructions or authorisations, supply of faulty materials to the Agency by the Advertiser, or any other circumstances beyond the Agency’s control, will be subject to extra charges for the Agency’s time and work and may involve delays in supply. The Advertiser will pay these extra charges and reimburse the Agency for any third party charges or expenses incurred by the Agency on the basis of the original Brief. The Advertiser will provide any Advertiser Content to the Agency (or, if requested, directly to the Client) by the date specified in the Agreement or as reasonably required by the Agency. The Agency shall not be bound by a change unless agreed in writing.
6. Production: Unless otherwise agreed in writing the Agency will arrange and oversee all production and post-production related to the Brief. Should it be agreed that the Advertiser arranges any production work itself, then in that regard the Agency shall not be responsible for the booking, supervision or quality control of any relevant facilities, nor will it be responsible for payment of any related charges.
7. Approvals: Approval by the Advertiser of final copy, layouts, scripts, story boards, designs and the like will be the Agency’s authority to proceed with production or publication as appropriate.Where artwork or other material is sent to the Advertiser for final approval, the Advertiser shall check it carefully and notify the Agency of any errors or alterations. The Agency will use its reasonable endeavours to effect any changes so notified but the Agency reserves the right to charge extra if any of these alterations either go beyond the original Brief. Where notification of errors is either unreasonably delayed in this way or does not occur at all before publication, the Agency will not be liable in respect of any such errors. The Agency will also not be liable in respect of errors which may occur after the handover of artwork where the Advertiser oversees the print and production process. The Agency cannot guarantee that any or all colours will be exactly replicated in the final version as published.
8. Rights: Unless negotiated and agreed in writing, the Rights (including copyrights) of general artwork, commissioned artwork, illustrations, website design, programming and copy belong to the Agency or the Client. If the Advertiser supplies the Agency with material, it is the Advertiser’s responsibility to obtain all necessary Rights and licences for its use in advance. The ownership of the Rights in all such materials supplied by the Advertiser to the Agency shall remain vested in the Advertiser. The Agency reserves the right to use any artwork or printing it produces for the purposes of promoting its services unless requested otherwise in writing.The
Advertiser’s right to use any material of the Agency or the Client shall be automatically terminated if this Agreement expires or is terminated for any reason or if the Advertiser:
If the Advertiser wishes to use the Deliverables in ways going beyond the parameters in the Brief, it must approach the Agency for prior written consent.
In so far as use of the Deliverables as per the Agreement involves use of third party material, the Agency will secure such licence as is necessary to allow the required use of the same. Subject to the above and to the rights of any third party, ownership of the Rights in or relating to the Deliverables shall remain vested in the Agency unless and until any assignment or other disposition of the Rights in or relating to the Deliverables is agreed between the parties in writing.
For the avoidance of doubt, where the Agency makes any presentation to the Advertiser going beyond the Brief, the Advertiser shall have no right to make use of any material contained in such presentation unless and until a separate contract is concluded between the parties.
Use of the Deliverables as per the Brief may involve the Advertiser in continuing liability to third parties, for example for royalties, licence fees and performance fees. The Agency will endeavour to notify the Advertiser of these as soon as practicable during the production process.
If, during or after the period of use of the Deliverables envisaged in this Agreement, the Advertiser wishes to use or authorise another to use any part of the Deliverables in ways outside those contemplated in this Agreement, the Advertiser must obtain the Agency’s prior written consent.
The Rights in any materials provided by the Client shall remain vested in the Client.
The Advertiser licenses the Agency and the Client to use any Rights of the Advertiser in the Deliverables and/or any materials supplied by the Advertiser for the purpose of enabling the Agency to fulfil the Agreement.
The Advertiser acknowledges that its Agreement is with the Agency, that it has no rights under the Agreement or these Terms and Conditions against the Client and that the Client has no liability to the Advertiser under, or in relation to the matters referred to in, the Agreement.The Advertiser acknowledges the rights of the Client to have the benefits of these Terms and Conditions and to enforce the terms herein where permitted by law under the Contracts (Rights of Third Parties) Act 1999.The Advertiser agrees to indemnify and hold harmless the Agency, the Client and their respective agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including reasonable legal fees) arising from any claim, demand or action alleging that any materials supplied by the Advertiser infringe a third party’s Rights.