Lightspeed Design - Everything you need in design

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LIGHTSPEED DESIGN - TERMS OF BUSINESS

1	INTERPRETATION AND DEFINITIONS
1.1	In this Agreement the following expressions shall have the following meanings unless the context otherwise requires:
“the Company”
means Lightspeed Design whose registered office is situate at 15 St Marks Road, Brownhills, Walsall, West Midlands, WS8 7AQ;
“the Conditions”
means these terms and conditions;
“the Customer”
means the person, firm or company who commissions the services of the Company; 
“Intellectual Property Rights”
means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, 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;
“the First Instalment Payment”
means the first instalment payment made by the Customer to the Company which is to be agreed by the Company pursuant to clause 3;
“the Materials”
means all documents, information and materials provided by the Company relating to the Project which including computer programs, data, reports and specifications belong to a third party;
“the Project” 
means the work undertaken by the Company for the Customer;
1.2	Any headings contained in these Conditions are for reference purposes only and do not form part of the Conditions and shall not be deemed to alter or affect the meaning of any of the provisions hereof;
1.3	A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns;
1.4	Words in the singular shall include the plural and vice versa;
1.5	A reference to writing or written includes faxes and e-mail;
1.6	These Conditions shall apply to and be incorporated into the contract between the Company and the Customer and prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing:
2	COMMENCEMENT AND DURATION
2.1	By commissioning the Company to undertake the Project on their behalf, the Customer agrees that the Conditions define the contract between the parties and that all further Projects or services that the Company may be contracted to provide for the Customer will be subject to the Conditions;
2.2	The services carried out under these Conditions shall continue until the Project is completed or until termination by either party giving the other party not less than 1 months notice in writing;
2.3	All sums payable to the Company under these Conditions shall become due immediately on its termination, despite any other provision: 
3	QUOTATIONS AND ORDERS
3.1	When the Company is in receipt of a signed order form complete with a First Instalment Payment as set out on the order form, the Company will commence work. No work on the Project will be entered into until such notification and payment has been received. 
3.2	All quotations provided by the Company to the Customer are estimates only;
3.3	If the Customer requires any change or alteration to the works stated in any quotation, the Company and the Customer shall, prior to any change being implemented agree the nature of the change, the procedures for implementation of such a change and the change in the fees. The Company will continue to provide the services described in the quotation until any such change has been formally proposed and agreed by both parties;
3.4	Until the Company has been paid in full the Customer shall not modify or adapt any work to the Project except with the prior written consent of the Company or as otherwise permitted by law where all modifications and adaptations shall belong to and vest in the Company unless otherwise agreed and specified in writing on the quotation;
3.5	When instructions are received orally by the Company it shall have no liability to the Customer for any misunderstanding or misrepresentation which may arise ;
3.6	Any quotes provided orally by the Company may be subject to change once the Company has received detailed written instructions from the Customer;
3.7	The Company may at its sole discretion not accept an order placed by the Customer;
3.8	The Customer is responsible for ensuring that all materials that it provides the Company for use in the Project are legal and suitable for publication. It is the responsibility of the Customer that it has the appropriate authorities in place to use the material and that there is no breach or infringement of Intellectual Property Rights;
3.9	The Company at its discretion may refuse to work with the materials provided if the Company consider the materials to be unsuitable, illegal, obscene, offensive, libellous or otherwise unsuitable for publication: 
4	THE PROJECT 
4.1	The Project shall be agreed in the following manner:
4.1.1	the Customer shall provide the Company with a request for a Project, setting out the requirements and specifications of the services which it is requesting from the Company, including a description of what work is to be done, dates by which it is requested to be started and finished;
4.1.2	the Company and the Customer shall discuss and agree the Project and when it has been agreed, the Company shall commence work on the Project subject to these Conditions;
4.2	The Company shall use reasonable endeavours to meet any dates specified by the Customer but any such dates shall be estimates only and time shall not be of the essence;
4.3	The Company shall submit to the Customer proofs of the Project for approval and upon receipt of the proof the Customer shall provide the Company with written confirmation of approval of the proofs:
5	FEES
5.1	For each Project, the Customer will receive an estimate outlining the Project specifications and estimated fees based on current hourly rates; 
5.2	The Company will begin work upon the Customer’s written approval of the estimate and this will constitute an agreement between the parties; 
5.3	The Customer agrees to pay the Company in accordance with the terms specified in each proposal and/or estimate;
5.4	Any estimates provided by the Company are valid for 30 days from the date of the estimate;
5.5	All charges quoted to the Customer shall be exclusive of VAT which the Company shall add to its invoices at the appropriate rate;
5.6	In respect of cancellations the Company at its discretion may charge for all abortive work undertaken by the Company. In the event that the printing process has started then the Customer shall be liable for the full contractual fee payable:
5.7	The Company shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Project:
6	PAYMENT
6.1	Unless otherwise agreed in writing by the Company the Customers will be required to pay the First Instalment Payment before work can begin;
6.2	The Customer shall pay all printing costs in advance to the Company and such costs to be received by the Company in cleared funds before the Company shall authorise printing;
6.3	All payments due to the Company are to be received in cleared funds by the Company no later than 30 days from invoice date unless alternative credit terms are agreed in writing by the Company;
6.4	Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Company on the due date, the Company may charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Bank plc accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Company may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and suspend all services and not undertake any further work on the Project until payment has been made in full;
6.5	In the event that the Customer goes into insolvency or being an individual is declared bankrupt then the Company will cease work immediately on the Project and all fees due shall be immediately payable;
6.6	The Customer shall pay the Company’s costs, charges and expenses directly or indirectly incurred in obtaining or otherwise enforcing payment of outstanding accounts;
6.7	Time for payment under these Conditions shall be of the essence:
7	REVISIONS AND ALTERATIONS
7.1	Any new work requested by the Customer and performed by the Company after a proposal and/or estimate has been approved is considered a reversion or alteration. If the Project changes to an extent that substantially alters the specifications described in the original estimate, the Company will submit a revised proposal and/or estimate to the Customer and both parties must agree to a revised additional fee before further work proceeds;
7.2	Any alterations and other copy changes requested after layouts or mechanicals are completed are to be billed at the Company’s standard hourly rates. Overtime and rushed order estimates are based on a reasonable time schedule and may be revised to take into consideration the Customer’s priority scheduling requests requiring overtime and/or weekend working to be at the discretion of the Company;
7.3	It is the Customers obligation to ensure that the Company is informed of deadlines essential to the Customer to enable the Company to provide an accurate estimate of costs;
7.4	In the event that third party contracts are required the customer shall be responsible for all of these costs in advance. Should there be an increase in costs above the original quotation then these costs shall also be passed on to the Customer :
8	EXCLUSION AND LIMITATION OF LIABILITY
8.1	The Company shall not be liable for losses special to the particular circumstances of the Customer, nor indirect or consequential loss including loss of profits, loss of business, loss of goodwill, damage to property, wasted expenditure, loss of use, loss of corruption of data or information or economic loss; 
8.2	The Customer agrees to exercise due diligence in its direction to the Company regarding preparation of materials and must be able to substantiate all claims and representations; 
8.3	The Customer is responsible for all trademark, copyright and patent infringement clearances and is responsible for arranging prior to publication, any necessary legal clearances, licences, usage or royalty payments;
8.4	The Company’s liability for any loss or damage direct or otherwise and howsoever caused whether intended or not, including negligence, or otherwise shall not exceed the amount invoiced by the Company to the Customer hereunder;
8.5	If the Company’s performance of its obligations is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay;
8.6	The Customer shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations;
8.7	The Customer shall indemnify the Company against any claims, costs, expenses incurred as a result of publishing any materials which is deemed to be obscene, libellous or which may constitute an infringement of Intellectual Property Rights of any third party;
8.8	The Company may from time to time and without notice change the services that it provides in order to comply with any applicable law or statutory requirements:
8.9	The Customer will indemnify and hold the Company harmless for any loss or expense (including legal fees) and agree to defend the Company in any actual lawsuit, claim or action arising from the Project this includes, but is not limited to claims made against the Customer and/or in relation to the materials and/or arising from the publication of material that is prepared by the Company and approved by the Customer before publication;
8.10	All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded;
8.11	Nothing in these Conditions limits or excludes the liability of the Company:
8.11.1	for death or personal injury resulting from negligence; or 
8.11.2	for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Company: 
9	PROOFS, ERRORS AND OMISSIONS
9.1	It is the Customer’s responsibility to check proofs carefully or accuracy in all respects, including but not limited to prices, spelling, dimensions and artwork. The Company is not liable for any errors or omissions whatsoever; 
9.2	The Customer’s signature or that of his/her authorised representative is required on all proofs of artwork prior to release for printing or other implementation;
9.3	Any photographs provided by the Customer are to be considered ready for production and will not be altered by the Company except on the written confirmation of the Customer providing authorisation to alter the photographs and the Company shall not be liable for any errors or omissions in altering the photographs;
9.4	The Company does not undertake printing and if printing is requested by the Customer the Company may use a printing house of its choice and the Customer shall be responsible for the costs of the same. Any printing carried out by a third party on behalf of the Company shall not be the responsibility of the Company and the Company shall not be responsible for any colour variance occurring during any printing;
9.5	Any graphic design work, artwork and proofs may be delivered to the Customer by the Company by files on disc or via email:
10	PROPERTY AND RISK
10.1	Any property provided by the Customer to the Company shall be at the risk of the customer whether it is kept at the Company’s premises or in transit ;
10.2	In the absence of negligence on part of the Company, the Company shall not responsible for loss, destruction or damage or unauthorised use by others of such property;
10.3	The Company will use reasonable endeavours to guard against any loss arising from the failure of third party suppliers, media or others to perform in accordance with their commitments but the Company shall not be responsible for failure on the part of any such third party suppliers, media or others;
10.4	The Company shall not in any way be held responsible for quality, price, performance or delivery of materials made or supplied by others where the work has been placed directly by the Customer or his agents:
11	LIEN
All materials or property belonging to the Customer, as well as work performed, may be retained as security until all claims by the Company against the Customer are satisfied:
12	INTELLECTUAL PROPERTY RIGHTS
12.1	The Company gives no warranty, representation or undertaking in relation to any third party Materials or works;
12.2	Once a Project has been delivered by the Company and is fully paid for by the Customer, the Company will assign the reproduction rights of the design for the use(s) described in the proposal;
12.3	All copyright, design right, registered designs, trade marks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature world wide whether registered or not of whatever nature in material devised, created or commissioned by the Company will belong to the Company until the Company has been paid in full and upon payment in full all copyright shall vest in the Customer;
12.4	All copyright, the rights to all design and artwork, including but not limited to photography, music and or illustration created by independent photographers, artists or illustrators retained by the Company, or purchased from a stock agency on behalf of the Customer, remain with the individual designer, artist, photographer or illustrator;
12.5	Until full payment has been received by the Company the Customer may not use or reproduce the design, work or the property in the Project for a purpose other than the one(s) originally stipulated in the Project;
12.6	The Customer may use the design the Company has created and/or the images within it for another purpose other than the Project, including a reprint or exhibition, so long as all payments due to the Company have been paid in full; 
12.7	The Company reserves the right to photograph and/or distribute or publish for the Company’s promotional and marketing needs any work created in the Project for the Customer, including rough sketches, visuals, mock-ups and presentations, as samples for the Company portfolio, newsletter, brochures, presentations, website and for entry for awards:
13	RIGHTS OF OWNERSHIP
The Company will endeavour to store files on computer disks for a period of 12 months beyond the delivery of the Project thereafter the Company reserves the right to discard them without notice to the Customer:
14	BREACH OF CONDITIONS
14.1	The Company shall be entitled to immediately restrict, suspend or terminate the Project and the Customer’s use of any works and/or terminate work on the Project upon the Customer’s material breach of these Conditions (including without limitation the non-payment of any sum as and when due) unless the Customer remedies such breach within 14 days of its occurrence;
14.2	Upon material breach of the Conditions by the Customer any sums payable to the Company shall be due and payable immediately:
15	CONFIDENTIALITY
15.1	The Customer 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 Customer by the Company, its employees, agents or sub-contractors and any other confidential information concerning the Company’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to the Company, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer;
15.2	All materials, drawings, specifications and data supplied by the Company to the Customer shall, at all times, be and remain the exclusive property of the Company, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Company, and shall not be disposed of or used other than in accordance with the Company’s written instructions or authorisation;
15.3	This Condition 15 shall survive termination of the agreement between the Customer and Company, howsoever arising:
16	COMPLAINTS
16.1	Any complaints or claims made against the Company must be received within 7 days of receipt of the Project by the Customer;
16.2	In the event that the complaint or claim is received outside of the 7 day period set out under Condition 16.1 then the Company shall not be liable for the same:
17	FREELANCE
17.1	This Condition 17 shall apply in the event that the Company is acting as a freelancer; 
17.2	The freelance rates are to be confirmed by the Company in advance in writing to the Customer;
17.3	The Customer must sign all time sheets of the representative of the Company attending to carry out the freelance work;
17.4	The Company shall at its discretion send to the Customer any employee or representative to carry out the freelance work and the Company shall not be liable in the event that this individual is not available to attend to undertake the freelance work;
17.5	In the event that the Customer wishes to cancel any contract for the Company to provide freelance work cancellation fees shall apply as follows:-
17.5.1	for one weeks notice 20% of the cost of total time booked shall be charged to the Customer;
17.5.2	for 48 hours notice 50% of the cost of total time booked shall be charged to the Customer;
17.5.3	for 24 hours notice or less 100% of the total time booked shall be charged to the Customer;
17.6	In the event that there are interruptions to e-mail and/or difficulties with transmissions and computer failures then the Company shall not be responsible for any losses incurred by the Customer and the Company shall be paid during the time period of the interruptions and/or difficulties with transmissions and computer failures;
17.7	The Customer shall be responsible for seeking approvals from its’ customers for all alterations and/or revisions to all freelance work and/or for obtaining final approval for print work undertaken by the Company and for the avoidance of doubt the Company shall not be liable in respect of such alterations and/or additions and/or obtaining final approval of print work;
17.8	Conditions 3.4, 5.6, 6.2, 7 and 12 shall not apply to any freelance work undertaken by the Company;
17.9	In the event of conflict between these Conditions and this condition 17 then the Conditions shall prevail:
18	DATA PROTECTION
The Customer acknowledges and agrees that details of the Customer’s name and address may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Company in connection with the Project:
19	SEVERANCE
19.1	If any provision (or part of a provision) of these Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force;
19.2	If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal:
20	ASSIGNMENT
20.1	The Customer shall not, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions;
20.2	The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions:
21	NO PARTNERSHIP OR AGENCY
Nothing in these Conditions is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power):
22	RIGHTS OF THIRD PARTIES
These Conditions are for the benefit of the parties to them and (where applicable) their successors and permitted assigns and are not intended to benefit, or be enforceable by, anyone else:
23	NOTICES
Any notice given under these Conditions shall be in writing, sent for the attention of the person, and to the address, or such other address or person as the relevant party may notify to the other party. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 23 is not within business hours then at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the envelope containing the notice was properly addressed and posted to the address provided by the other party:
24	FORCE MAJEURE
Any work on the Project, storage of files and property belonging to the Customer will be established and adhered to by both Customer and the Company provided that neither shall incur any liability, penalty or additional cost due to delays caused by a state of war, riot, civil disorder, fire, industrial dispute or strike, accidents, energy failure, equipment breakdown, delays in shipment by suppliers or carriers, action of government or civil authority, and acts of God or default of third party suppliers to the Company or other causes beyond the control of the Company: 
25	WAIVER
Failure by the Company to enforce any of these Conditions shall not be construed as a waiver of that condition or any other condition:
26	ENTIRE AGREEMENT
26.1	These Conditions constitute the entire agreement between the parties and supersedes all prior agreements and/or arrangements in connection with the subject matter hereof; 
26.2	No director, employee or agent of the Company is authorised to make any representation or warranty not contained in these Conditions and the Customer acknowledges that he has not relied on any such oral or written representations; 
26.3	No variation or waiver of any of the provisions of these Conditions shall be binding unless in writing and signed by a duly authorised director or employee of the Company:
27	APPLICABLE LAW
The validity and enforceability of these Conditions will be interpreted in accordance with the laws of England but the Company reserves the right to bring proceedings in connection with these Conditions in any other court of competent jurisdiction: