1. GENERAL
Unless otherwise agreed in writing, all Services and/or Goods are supplied subject to the following conditions. No amendments shall be effective unless confirmed by us in writing. No conditions included in your Enquiry and/or Order shall be of any effect. These Terms and Conditions will form part of a valid and binding Agreement between the Contractor and you, the Customer, for any Services provided or work done. Your acceptance of the Contractor’s Quotation will constitute an unconditional acceptance of these Terms and Conditions.
2. DEFINITIONS
(1) “the Contractor” means Land Marketing Ltd trading as Shaka Studio;
(2) “the Customer” means the customer/ client.
(3) “the Goods” means all items specifically referred to or properly required for the purpose of the Contract;
(4) “the Services” means all work carried out by the Contractor in accordance with the Contract;
(5) “the Contract” means the Agreement between the Contractor and the Customer intended to arise from the Contractor’s Quotation or otherwise; including therein all documents to which reference may properly be made in order to ascertain the rights and obligations of the parties.
3. PERIOD OF TENDER
The Quotation (if any) is conditional upon acceptance in writing within 30 days of the date thereof or such longer period as may be agreed in writing. The Contractor’s Quotation is an Invitation to Treat and no binding Contract shall arise until the Customer’s Order has been accepted in writing by the Contractor.
4. CANCELLATION
Orders which have been accepted by the Contractor shall not be subject to cancellation either wholly or in part without the Contractor’s written consent which will be deemed to include a Condition that the Contractor shall be indemnified by the Customer against all costs incurred up to the date of cancellation and all costs, loss of profits, and any other losses or
Contractor’s expenses reasonably attributable to the cancellation.
5. ADDITIONAL WORK OR VARIATIONS AND OVERTIME
(1) The term “variation” means any alteration or modification of the specification design, quality or quantity of Services and/or Goods and includes the addition, omission or substitution of any work and the alteration of the quantity kind standard or specification of any of the Services and/or Goods supplied under the Contract.
(2) The Customer may order variations to the Services and/or Goods and the Contractor shall use its best endeavours to comply with such order but not until:-
(i) the same have been ordered in writing by the Customer and, accepted by the Contractor; and
(ii) the value of the variation has been agreed between the parties; and
(iii) a new Contract timetable has been agreed.
(3) If it is not reasonably possible to estimate the value of a variation before the Contractor complies with the order, or if the Order is complied with before such value has been agreed, then a fair valuation shall be made and shall be paid by the Customer under the terms of the Contract.
(4) the Quotation (if any) is based on the work being done during the recognised normal working hours. Overtime required to fulfil the Contract and/or authorised by the Customer, or his agent shall be an additional charge and be paid for at the Contractor’s appropriate rates ruling at the date the work is carried out.
(5) The Contractor retains the right to charge a“Rush Fee” which (if required) is an additional fee, on top of the quoted fee in order to deliver the Services within a short time period.
(6) Services are subject to two revisions, and will incur a fee if additional work is required after the second revision (subject to agreement between both parties prior to the work taking place).
6. BASIS OF TENDER
(1) The Quotation (if any) is conditional (where applicable) upon the Customer having supplied the Contractor with accurate instructions, information and details and all relevant information as will enable the Contractor to make an accurate estimate of the cost of the supply of the Services and/or Goods and the work to which the Quotation relates and the time for its completion. In the event of the Customer supplying inadequate or inaccurate information or details, the Contractor will be entitled to revise the Quotation prices under the Contract.
(2) For the benefit of the Customer, the Contractor may create mock visualisations to help the Customer to envision the Contractors creative concepts. However, these visualisations may vary from the final delivered work and are to be used only as a guide
7. TERMS OF PAYMENT
(1) During the execution of the Contract, the Contractor shall be entitled to be paid by any instalments which are specified in the Contract;
(i) Following any Invoice correctly rendered under the Contract the Customer shall pay to the Contractor the full amount properly applied for.
(ii) Unless otherwise stated all prices are net and Invoices will be payable 14 days after the date on the invoice. The Customer undertakes to pay to the Contractor interest at the annual rate of current Barclays Bank Base Rate plus 4% on all overdue payments.
(2) If the Customer fails to make any payment in accordance with the Contract and such failure continues for seven days then without prejudice to any other rights or remedies of the Contractor, it may suspend deliveries and/or the further execution of all work under the Contract until such payment is made and any such period of suspension shall be deemed to be an extension of the period for completion either as stipulated in the Contract or as determined in accordance with Clause 11 and shall not be deemed a delay in the completion of the Contract for which the Contractor shall be held responsible.
(3) The adoption or use by the Customer of any Service and/or Goods supplied by the Contractor pursuant to the Contract shall be conclusive evidence of the Customer’s acceptance of and satisfaction with such Services and/or Goods and the Contractor shall thereupon be deemed to have fulfilled the Contract in whole or in part in respect of any such Services and/or Goods.
(4) In some cases the Client may be required to provide payment in full or clear the balance of their account before the Service/ Work is provided
8. TITLE
(1) Upon delivery to the Customer all risks of whatever nature in the Goods shall pass to the Customer but until such time as the Services and/or Goods have been paid for in full ownership of the Goods shall remain with the Contractor and the Customer shall hold the same as the Contractor’s Bailee. The Contractor reserves the rights to re-take possession of the Goods in the event of the Customer’s failure to comply with the agreed payment terms.
(2) Where payment is made by cheque or other negotiable instrument the Contractor shall not be deemed to have received such payment until such cheque or instrument has been honoured on presentation for payment. Nothing in this Clause shall entitle the Customer to return any of the Goods or to delay or withhold payment or claim credit therefore except as the Contractor may otherwise expressly agree in writing.
(3) Unless otherwise specified all artwork costs will be charged to the Customer but the artwork will remain the property of the Contractor.
(4) The Customer represents and warrants to the Contractor that (a) the Customer owns all Right and Title or otherwise has full right and authority to authorise and permit the use of all Contract content; (b) that the Contract content does not infringe the rights of any third party and that its use and use of any trademarks requested by the Customer does not and will not violate the rights of any third parties; (c) the Customer will comply with any Licensing Agreement which governs the use of all Contract material; and it is hereby agreed that the Customer will fully indemnify the Contractor against any claims in relation to any such matters.
(5) All material, designs and concepts submitted by the Contractor to the Customer whether it is accepted or rejected for the purposes of the Contract and whether or not it is used for the purposes of the Contract will remain the sole intellectual property of the Contractor which the Contractor will thereafter be entitled to use for its own purposes without notification to or the consent of the Customer.
(6) The Contractor retains the right to use the work product in their portfolio, website, social media channels, and other related materials for marketing purposes.
(7) The Contractor retains the right to attribution and the placement of the Shaka Studio’s brand at the bottom of the brochure, hoarding and/or newly developed website with a hyperlink to Shaka Studio’s website.
(8) Preliminary Works/Working Files. The Contractor retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and Client shall return to Designer all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.
(9) The Client is paying for finished files and has no claim to the Contractors native files.
9. COPYRIGHT
(1) The Contractor will retain the property and copyright in all Services and/or Goods in relation to the Contract. The Customer will not use or reproduce them in their original or any modified form or authorise or permit any third party to do so without the prior written consent of the Contractor.
(2) The Customer will indemnify the Contractor against any claims resulting from the use of any Customer’s design or specification which infringes or is alleged to infringe any third party’s patents registered designs or copyrights or any other rights.
(3) The Contractor will retain the right to reproduce, publish and display all and any parts of the Product of the Contract in the Contractor’s Portfolios and Websites, and in Galleries, Public and Private Design Publications and any other media or exhibits to publicise and/or recognise the Contractor’s creative skills and the development of the Contractor’s business, and the Contractor may claim credit for authorship in relation to all such uses and the Contractor’s role in relation to the performance of the Contract and, if applicable, the Contractor’s Services provided to the Customer on its website and in any other promotional material such as Brochures and Hoardings
10. GUARANTEE AND LIMITATION OF LIABILITY
(1) The Contractor shall only be liable to make good any defects or errors in the Services and/or Goods which stem from the Contractor’s faulty design or the Contractor’s selection of unsuitable or inadequate materials or from faulty materials or bad workmanship. It is a condition precedent of any such liability that:-
(i) the Contractor receives written notice of any patent defect within 5 working days of the despatch of the Goods or the completion of the Services; and
(ii) the Goods and the Services have been properly kept and used correctly and under proper operating conditions; and
(iii) the Goods and the Services are used at all times solely and exclusively for the purpose intended and/or stated or indicated by the Contract.
(2) Save as is provided in this Clause, the Contractor shall not be liable for any loss or damage whether arising directly or indirectly as a consequence of any defect or error in the Services and/or Goods and then only to the extent that such defect is caused by the negligence or breach of contract of the Contractor, his servants or agents. The Contractor’s liability is strictly limited to the replacement repair or rectification of the defective Services and/or Goods and the Contractor will not in any circumstances be responsible for any consequential loss whether direct or indirect or howsoever arising.
(3) The Contractor accepts no responsibility for any design or specification not prepared by the Contractor. Submission of a Quotation does not constitute any warranty, guarantee, representation or opinion of the practicability of use or of the quality of materials or final product to be supplied or work to be executed by the Contractor in accordance therewith and the cost of any additional work caused by defects in any such design or specification shall be chargeable as a variation under the provisions of the Contract.
(4) The Contractor will fulfil the Contract in accordance only with the Contract terms. All other conditions guarantees or warranties including guarantees or warranties as to the quality or description of the Goods and Services or of their life or wear or of their use under any circumstances whether known or made known to the Contractor or not and whether expressly or implied by statute or common law to the extent permitted are hereby expressly excluded.
(5) The proof reading of all material produced under the Contract is exclusively the responsibility of the Customer. After such approval the correction of any errors such as typographical errors, misspellings, or omissions (by way of example not limitation) then remaining in the Contractor’s product shall be corrected by the Contractor at the expense of the Customer.
11. TIME FOR COMPLETION
(1) The date specified by the Contractor for the delivery of the Services and/or Goods is not to be the essence of the Contract. The Contractor will not in any circumstances be liable for or liable to pay compensation to the Customer or any third party for late delivery or late completion howsoever caused.
(2) Subject to Clause 7(2) hereof the Contractor shall, so soon as the Customer has fulfilled its own responsibilities relating to the Services and/or Goods, proceed regularly and diligently with the execution of the Contract in accordance with the timetable of the Contract.
(3) Upon it becoming reasonably apparent that the progress of the Contract is delayed, the Contractor shall be entitled to give notice of the delay to the Customer stating the cause and, where reasonably practicable, the extent of the delay. Where the delay is due to circumstances beyond the Contractors control, the Customer shall forthwith grant the Contractor a full and reasonable extension of time for completion of the Contract.
(4) Where the progress of the Contract is delayed or materially disrupted by any act, omission or default of the Customer or those for whom the customer is responsible, then the Customer shall pay or allow to the Contractor the actual amount of direct loss and expense (including direct costs, overheads and loss of
profit) as may be attributable to such delay or disruption.
12. FORCE MAJEURE
Should fulfilment of the Contract be prevented or delayed by “force majeure” or by reason of mobilisation hostilities acts of Queen’s enemies or war (whether declared or not) government action department instructions or act of God, Riots, combination of workmen lockouts strikes or disturbances wherever taking place or non-delivery of raw materials or fuel or fire, flood heat frost, pandemics, holiday breakdown of or accidents to equipment or machinery or any other circumstances beyond the Contractor’s control the Contractor reserves the right to cancel or suspend the Contract. The Contractor will not be liable in any way of loss or damage arising directly or indirectly through or in consequence of such events or happenings.
13. LAW
The Contract wherever it is deemed to be performed and all disputes and claims under it wherever they may be deemed to have arisen shall be interpreted and construed solely in accordance with the Laws of England whose Courts shall have sole and exclusive jurisdiction over the Contract and any matters arising from it.
14. GENERAL
(1) The above conditions shall apply both to the quotation (if any) and any Contract arising from it and to all orders subsequently placed with the Contractor by or on behalf of the Customer in connection with the same or related Goods and Services unless otherwise agreed in writing.
(2) All Estimates are strictly net and will not be subject to any discounts except as otherwise specified in writing, and VAT at the current rate will be added to all prices. The Customer is not entitled to make any deductions whatsoever from any sums due under the Contract including any Customer’s claim for set off or
counter-claim relating to the Contract or any other Contracts or business transacted between the parties.
(3) In the even the Contractor is reliant on receiving information/ content from the Customer and the Customer are unable to supply all of the requested content, it does not imply that the Contractor have not completed the project.
(4) No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any employee or Design Agent of Designer, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Designer shall be entitled to an agency commission to be the greater of either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Designer, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
(5) No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Contractor, and Contractor shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by the Contractor.
15. Contracts (Rights of Third parties) Act 1999
Nothing in the Contract confers or shall be deemed to confer on any person who is not a party to it a right pursuant to the Contracts (Rights of Third Parties) A
