1. Our contract with you
These are the terms and conditions on which Anthony McLaughlin, trading as Tony Man, supplies services to you. Please ensure you read these terms carefully.
These terms and conditions should be read in conjunction with the proposal which outlines the scope of work we agree to undertake for you, and our quotation which sets out the fee that we will charge for providing you with this service. Our terms and conditions, the proposal and our fee quotation constitute the entire contract between us. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by us. Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained on our website or advertising literature, are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the contract or have any contractual force. These conditions apply to the contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2. Changes to terms and conditions
We may revise these terms from time to time. If we revise these terms we will give you at least one month’s written notice of any changes to these terms before they take effect.
You may make a change to the order for services at any time up to 2 working days before we start providing the services by informing us in writing at [email protected]co.uk. Where this means a change in the total price of the services, we will notify you of the amended price in writing.
3. Our service to you
We shall supply the services to you in accordance with our proposal in all material respects. We warrant that the services will be provided using reasonable care and skill.
We shall use all reasonable endeavours to meet any performance dates specified in our proposal but any such dates shall be estimates only and time shall not be of the essence. Please see clause 9 for our responsibilities when an event outside our control happens.
4. Your obligations to us
Your responsibilities under the contract are as follows:
I. ensure our proposal is accurate, complete, based on your specification and meets your needs and inform us in writing if not;
II. co-operate with us in all matters relating to the services;
III. provide us with such information and materials as we may reasonably require in order to supply the services and ensure that such information is accurate in all material respects; and
IV. obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the services are to start.
If our performance of any of our obligations under the contract is prevented or delayed by any act or omission by you, or failure by you to perform any relevant obligation:
I. we shall without limiting our other rights or remedies have the right to suspend performance of the services until you remedy the default;
II. we shall not be liable for any costs or losses sustained or incurred by you, arising directly or indirectly from our failure or delay to perform any of our obligations; and
III. you shall reimburse us on written demand for any costs or losses we have sustained or incurred arising directly or indirectly from your failure to perform your obligations.
5. Intellectual property rights
We will own all copyright, design rights and all other intellectual property rights in connection with any products designed for you or services provided to you and any drawings or illustrations until full payment has been received in accordance with clause 7.
If multiple design concepts have been submitted to you for your consideration, you will only be permitted to select one design, unless the proposal provides otherwise. The remaining design concepts will remain our intellectual and physical property and we will be able to retain, reuse and resell them in any manner we see fit. For the avoidance of doubt, any drafts for any concepts will remain the intellectual property of Tony Man.
By supplying text, images and other data to us you warrant that you hold the appropriate copyright, trade mark and / or other intellectual property licences and permissions. The ownership of such materials will remain with you, or the licensor. We shall under no circumstances whatsoever be liable to you or the rightful intellectual property owner for any losses arising as a result of your failure to secure all necessary permissions and/or licences. You agree to indemnify us for any and all claims arising from you failing to obtain all the necessary permissions and / or all damages, losses and expenses arising as a result of any actions or claims that the materials infringe the intellectual property rights of any third party.
6. Rights of refusal
We will not include in our designs any text, images or other data which we deem to be threatening, defamatory, obscene, indecent, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, promotes violence, or which is likely to embarrass, alarm, harass, or upset another.
7. Price and payment
The price of our service will be set out in our fee quotation. You agree that any amendments or additional work required over and above the work set out in the proposal will be subject to a separate charge, which we will confirm to you in writing.
We reserve the right to request an upfront payment of 50% of the price of the services. We will provide you with our invoice, or the balance of our invoice as the case may be, on completion of the works. You must pay each invoice in cleared monies within 30 calendar days of the date of the invoice by BACS or TT payment to our nominated bank account.
Where you terminate the contract in accordance with clause 11 we are entitled to make a reasonable charge based on the work which has been completed prior to the date of termination.
If you do not make the payment due to us by the date for payment, we may, at our discretion charge interest on the overdue amount at a rate of 3% per annum above the base lending rate of the Bank of England from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay interest together with any overdue amount.
You shall pay the amounts due under the contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may, without limiting our other rights or remedies, set off any amount owed to us by you against any amount payable by us to you.
8. Our liability to you
We shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for loss of profit or any special, indirect or consequential loss arising under or in connection with the contract.
Our total liability to you in respect of any losses arising under or in connection with the contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price you have paid for the services.
The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the contract.
Nothing in this contract shall limit or exclude our liability for:
I. death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors;
II. fraud or fraudulent misrepresentation; or
III. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
This, clause 8, shall survive termination of the contract.
9. Force majeure
For the purposes of this contract, force majeure events mean an event beyond our reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. We will not be liable to you as a result of any delay or failure to perform our obligations under this contract as a result of a force majeure event.
If the force majeure event prevents us from providing any of the services for more than five working days, we shall, without limiting our other rights or remedies, have the right to terminate this contract immediately by giving you written notice.
10. Raising queries or complaints with us
In the event that there is any defect with the services or product please contact us as soon as reasonably possible and give us an opportunity to repair or fix any defect. We will use every effort to repair or fix the defect as soon as reasonably practicable and, in any event, within five working days.
11. Ending our relationship
Either party may terminate the contract with immediate effect by giving the other party 14 days’ written notice. On termination of the contract for any reason:
I. you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
II. you shall return all of our materials, designs and art work which have not been fully paid for. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose;
III. the accrued rights, remedies, obligations and liabilities of the parties as at termination shall be unaffected, including the right to claim damages in respect of any breach of the contract which existed at or before the date of termination; and
IV. clauses which expressly or by implication survive termination shall continue in full force and effect.
We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of our rights under the contract and may subcontract or delegate in any manner any or all of our obligations under the contract to any third party or agent.
You shall not, without our prior written consent, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all your rights or obligations under the contract.
Nothing in this contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
Except as set out in these terms and conditions, no variation of the contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by us.
A party who is not a third party to the contract shall not have any rights to enforce its terms.
13. Governing law and jurisdiction
This contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this contract or its subject matter or formation (including non-contractual disputes or claims).