Terms and Conditions
TERMS & CONDITIONS: DEFINITIONS AND INTERPRETATION
“Advertiser” means the original named Advertiser, client or customer as set out in the Form whether as an individual, partnership, Company or any other organisation, its holding Company or successors in title or any of its agents, officers, partners or employees.
“Conditions” means these terms and Conditions of the Company.
“Contract” means the Form or similar document or Company’s quotation for the Services.
“Fees” means the Fees, as stated during the order for the Services, reconfirmed in the confirmation call and set out in the Form.
“Form” means the Proforma Invoice.
“Company” means Pictures Up Design Ltd, 111 South Road, Waterloo, Liverpool, L22 0LT, or any holding or subsidiary company, their successors in title or any party to which the Contract may be assigned.
“Publications” means the publication named on the Form.
“Services” means the Services of the Company as may be set out in the Contract and may include without limitation the creation of artwork or the inclusion of advertisements in Publications owned or controlled by the Company or third party.
“VAT” means Value Added Tax.
Headings shall not affect the interpretation of these Conditions. Words in the singular shall include the plural and vice versa. A reference to writing or written includes faxes and email.
1.1 Unless the Company agrees in writing to the contrary, any Services provided by the Company shall be subject to these Conditions which shall be deemed to be included the Contract either written or implied between the Company and the Advertiser. These Conditions shall prevail over any inconsistent terms or Conditions contained or referred to in any Advertiser’s documents, Contracts, agreements or terms, purchase order, confirmation of order, acceptance of a quotation or specification or implied by law, trade custom, practice or course of dealing.
1.2 These Conditions come into force and deemed accepted by the Advertiser unless the Company has received written notice stating otherwise within 48 hours of delivery of these Conditions to the address provided by the Advertiser or where Services have been commenced.
1.3 The Advertiser’s purchase order or the Advertiser’s acceptance of a quotation for the Services constitutes an offer by the Advertiser to purchase the Services as set out in the Contract. No offer placed by the Advertiser shall be accepted by the Company other than by written acknowledgement by a person authorised by the Company or (if earlier) where the Services have commenced. Any quotation is provided by the Company on the basis that no agreement shall come into existence (unless by the methods set out above).
1.4 The Advertiser has confirmed by telephone that it agrees to pay the Fees. In return for the receipt of payment of the Fees the Company shall place the advertisement in accordance with the details set out in the Form.
1.5 These Conditions may not be varied either in writing or otherwise unless agreed by an authorised officer of the Company. The agreement to these Conditions Forms part of the confirmation of order & agreement between the Advertiser & the Company.
1.6 Any other service requested by the Advertiser in the future may be added by way of a schedule, and will operate under these Conditions.
1.7 Where applicable the Company shall use reasonable endeavours to ensure that the Publications is published and delivered in good time to the authorising body. In the event that the authorising body should cancel or postpone an event or the publication or shall fail to distribute the publication for reasons outside the control of the Company the Advertiser acknowledges that the Company shall not be held liable by the Advertiser.
1.8 These Conditions are the only terms and Conditions upon which the Company provides the Services.
1.9 Where applicable the Company is under Contract to provide the publication free of charge to the authorising body. However, the Advertiser acknowledges that whilst the purchase of the advertisement makes the publishing of the publication possible, the advertisement space has been purchased from the Company and not any third party.
1.10 The Company shall provide the Advertiser with proof copy of the advertisement which the Company intends to include in the publication.
1.11 The Company may, without prejudice to any other rights it may have, set off any liability of the Advertiser to the Company against any liability of the Company to the Advertiser.
1.12 The Advertiser shall notify the Company within three working days of the posting of the proof copy of any alterations. The Company cannot guarantee to provide a further proof copy of any amended version.
1.13 The Company shall not be liable for any loss or damage suffered by the Advertiser or any other party arising out of the Company’s failure to carry out work if prevented from doing so as a result of any trade disputes, strike, lock out or circumstances beyond the Company’s control.
1.14 The Company shall not be liable for any loss, damage or costs incurred due to any inaccuracies in the advertisement where a proof copy has been stated as being accepted by the Advertiser.
1.15 Calls between the Advertiser and Company may be recorded for confirmation of conversation between the parties or for quality control or training purposes.
1.16 Notwithstanding the waiver of any previous breach, the Company reserves the right to terminate the agreement between the Company and the Advertiser without notice if any one of the following events should occur:- Non-payment by the Advertiser of any charges or compensation payable and owing, The appointment of a receiver/manager to the Advertiser, Composition or arrangements with the Advertiser’s creditors, Liquidation or bankruptcy of the Advertiser, Breach of any other terms of the agreement.
1.17 The Company is providing a service on the basis that the Advertiser will not be entitled to deduct from or set off against any monies due to or become due from the Advertiser in respect of any one Contract of service any sum or sums whatsoever which the Company are or may become liable to pay to the Advertiser.
1.18 These Conditions which are incorporated into the Contract and any agreement between the Company and the Advertiser supersede all previous agreements and constitutes the entire agreement between the Advertiser and the Company and no representation or statement not contained herein shall be binding on the Company. No alteration, waiver or modification of these Conditions shall be valid unless approved by an authorised officer of the Company.
2 INSURANCE, INDEMNITY & WARRANTIES
2.1 The Advertiser undertake to fully indemnify and keep fully indemnified the Company from all losses, damages and costs (including all reasonable legal costs) incurred by the Company as a result of any breach of any term of these Conditions, any agreement between the Company and Advertiser or any breached any warranty including without limitation that the Advertiser has the rights in and to the copyright and intellectual property contained in the work provided by the Advertiser for the advertisement.
2.2 The Company shall not be responsible for the following consequential losses including without limitation:
Loss of business
Loss of profit
Loss of goodwill
Loss of Contract
Loss of use
Loss of anticipated savings
Loss of corruption of data or information: Indirect losses
Or for any other consequential loss or pure economic loss, costs, damages, charges or expenses however arising. All warranties, Conditions and other terms implied by statute or common law are to the fullest extent permitted by law, excluded from these Conditions and agreement between the Company and the Advertiser.
2.3 Nothing in these Conditions limits or excludes the liability of the Company: for death or personal injury; or for any damage or liability incurred by the Advertiser as a result of fraud or fraudulent misrepresentation by the Company.
2.4 The Advertiser shall not provide any materials or consent to any work that is reasonably aware would infringe the rights of any third party.
2.5 The Advertiser, where there is any dispute, undertakes not to contact any Contractor of the Company and shall deal with the Advertiser’s own professional advisors and/or the Company
3.1 The payment of the Fees shall be made no later than 30 days from posting of the Form. A discount shall be provided where payment is made within 7 days of the posting of the Form.
3.2 The Company shall have the right to charge interest on late payments at a rate of 4% above the base rate of the Bank of England. Interest shall be calculated from the date of payment due until payment is received. The Company shall further have the right to claim interest under the Late Payment of Commercial Debts (interest) Act 1998.
3.3 Any invoice queries will only be accepted if received within 14 days of the invoice date. Whilst every effort is made by the Company to maintain high standards of integrity and reliability among its Contract staff and to provide Contract staff in accordance with these Conditions, by reasons of the human element involved, no liability can be accepted by the Company for any loss, expense, damage or delay arising from a failure of its staffing its entirety or part.
3.4 Unpaid cheques will incur a charge of £25.00 administration fee.
3.5 The Advertiser warrants that:
- a) it Contracts with the Company as a principal notwithstanding that the Advertiser may be acting directly or indirectly as an advertising agent, or media buyer or in some other representative capacity:
- b) where it is acting as an agent, it is fully authorised by its client to Contract with the Company to use the Services;
- c) the reproduction by the Company of any copy, literary work, artistic work, logos, design or photographs or images provided by the Advertiser shall not be defamatory, infringe any intellectual property rights or other rights or breach any Contractual arrangement.
- d) in respect of any images supplied by the Advertiser that includes a pictorial representation of any person that their consent or that of their authorised representative or estate has been provided:
- e) the work provided by the Advertiser shall not be unlawful or in breach of any legalisation
- f) the information provided by the Advertiser is complete, accurate and true
- g) It has retained copies of all copy, artwork, photographs and materials supplied to the Company in sufficient quality and quantity and the Company shall not be liable for any loss of the same.
4.1 Should the Advertiser terminate the agreement for the Services at any time before the expiration of the agreed period for any reason whatsoever the Advertiser will
- a) become liable for all subcontracted Services including any payment required from the Company on respect of such subcontracted Services;
- b) return all articles belonging to the Company;
- c) pay to the Company all outstanding charges and any compensation then due and owing;
- d) pay compensation to the Company, calculated at 50% of the Fees;
- e) pay all legal costs and interest in connection with the recovery of sums due under the agreement for Services;
4.2 If any provisions contained in these Conditions or Contract or agreement between the Company and the Advertiser is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable and illegal, that part shall be deemed removed and the other provisions shall remain in force.
4.3 If any invalid, unenforceable or illegal provision would be valid, forcible or legal if some part of it were deleted, that provision will apply whatever modification is necessary to make it valid, enforceable and legal. Nothing in these Conditions, Contract or agreement between the Company and the Advertiser is intended to, or shall operate to, create a partnership between parties.
4.4 The agreement between the Company and the Advertiser is made for the benefit of those parties and nothing in the Contract or these Conditions shall confer on any third party any benefit or the right to enforce any terms of the Contract, the agreement between the Company and the Advertiser or these Conditions. Notice shall be in writing, sent for the attention of the person, and to the address or fax number or email address set out in the Contract and shall be delivered personally, sent by fax emailed or prepaid first class post. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of a fax, at the time of transmission, in the case of an email 24 hours after it reaches the intended recipient’s inbox, in the case of first class prepaid post 48 hours from date of posting. To prove service, it is a sufficient to prove that the notice was faxed to the fax number of the receiving party or that the envelope containing the notice was properly addressed and posted. Please note that email shall not be deemed an appropriate method of notice for termination of the Contract or an agreement.
4.5 No cancellation will be accepted after 7 days of the original order date (cooling off period). Cancellations will only be accepted as detailed above. Refunds will not be accepted after 7 working days.
These Conditions shall be governed by and construed in accordance with the laws of England the courts of which shall have exclusive Jurisdiction.