Standard Terms & Conditions
1. Contract Terms
1.1 We agree to provide our services to you on the following terms and conditions. These constitute a contract between us and you and must be read together with our proposal and any other documents explicitly agreed to be part of this contract. Any other terms and conditions contained in any other document are excluded unless their inclusion is expressly agreed in writing.
1.2 In these terms and conditions:
1.2.1 "we" and "us" and means Elevation Creative Studios Limited a company registered in England under registered number 4639386 and of 80 White Eagle Road, Haydon End, Swindon, Wiltshire, SN25 1PS England, and,
1.2.2 the "services" means the services that you have ordered from us from time to time.
2. Terms relating to printed material
2.1 Unless otherwise stated, the price quoted by us to you is for delivery of our materials to your address set out in our estimates or quotation. We reserve the right to make an additional charge for extra costs involved in delivery to a different address.
2.2 All materials will remain our property until payment has been received in full by us from you. We shall have a general lien on your goods in our possession if you do not pay us in full.
2.3 You are responsible for obtaining all necessary authority to reproduce pictures, artwork, photographs or any other material that you may provide us. You agree to indemnify us against all loss or damage that we may suffer if you have not done this properly.
2.4 We reserve the right not to perform the Services for you if we reasonably believe that they are of an illegal or libellous nature or an infringement of copyright (or other rights) belonging to a third party.
2.5 You will be asked to approve all proof materials (ie PDF's or Hard Copy runouts) in writing before we create final artwork and disks. We shall not be held responsible for any errors that are not notified to us at this point.
3. Terms relating to websites
3.1 You agree to check all information as to prices contained in your website and agree that it is your sole responsibility to ensure that all prices and rates are from time to time accurate.
You accept that all orders received by it through the website shall be considered solely as transactions between yourself and your own customers and agree that we shall not be responsible in any way for any matters arising from any such orders.
3.2 Unless otherwise agreed, you allow to be shown at the bottom of each page of your website (and will not remove) the words "Designed by ElevationStudios" accompanied by a clickable hyperlink to our own website.
3.3 A copy of your website will be posted on a test platform. It is your responsibility to check the site thoroughly and ensure all copy, pictures and functionality (ie forms etc) are working correctly. We will only make the site live on written approval. We allow a period of 10 working days for bug fixes and minor alterations. After this period all work carried out on the website will be charged at our standard rates.
You agree that we may mention publicly (including on our website) that we are, or have been, involved in providing Services to you.
5. Intellectual Property Rights
5.1 You retain the rights in any materials that you provide to us and we will not use them for any purpose other than for your benefit.
5.2 Provided that all our charges for a deliverable are paid by you, we assign to you the copyright in such deliverable (but for the avoidance of doubt this shall not include proofs prepared by us that were not approved by you). Copyright will remain ours until payment has been received in full by us from you.
5.3 Where our work relates to the creation of a website provided that all our charges for such work are paid by you, we will assign to you the copyright in such website. Such assignment also does not cover intellectual property rights that belong to third parties and not to us (eg stock photos). In that case we will procure that you have the right to use such third party rights in connection with our materials for the purposes of your business.
5.4 Where we obtain licences of intellectual property rights for you from third parties these shall only be for materials provided by us to you under this Agreement and shall not be used by you for any other purpose.
5.5 You agree to indemnity us against any claim that may be made against us by a third party in connection with materials prepared for you by us which were based on information or material provided by you to us.
6. Your Obligations
You agree that you will:
6.1 ensure that your employees co-operate fully with us in relation to the provision of the Services; and
6.2 promptly give us such assistance, information and documents as we may reasonably require for the proper and efficient provision of the Services.
We agree to keep confidential any information that you tell us about your business and future plans and any other matter which either you say is confidential or which is clearly confidential. You also agree to keep confidential anything that we say is confidential.
8. Your Instructions
Unless directed otherwise by you, we will act in accordance with the instructions of any of your employees involved in the assignment.
Any dates quoted for the provision of the Services are approximate only and we shall not be liable for any delay in relation to the same howsoever caused.
10. Charges, Estimates and VAT
(a) ELEVATION CREATIVE STUDIOS shall charge such costs, charges, and expenses as shall be agreed in writing with the Customer for the supply of any goods and services.
(b) Any estimates given are based on ELEVATION CREATIVE STUDIOS' current costs of production and, unless expressly otherwise agreed in writing are subject to amendment on, or at any time after acceptance by the Customer to cover any rise or fall in such costs.
(c) ELEVATION CREATIVE STUDIOS costs, charges, and expenses are subject to VAT.
11. Additional Charges
ELEVATION CREATIVE STUDIOS reserves the right to make additional charges in respect of all costs, charges, and expenses incurred by ELEVATION CREATIVE STUDIOS beyond normal allowances including, but not limited to, those caused by or arising out of:
(a) copy or brief supplied not being clear and legible;
(b) author's corrections, project development or other work requested by the client not specified in the estimate. This will be charged at the usual hourly rate.;
(c) additional use of fax, telex, couriers and similar facilities; and
(d) additional or expedited deliveries, packing or mailing.
12. Preliminary Work
All preliminary work carried out at the Customer's request, whether experimentally or otherwise, shall be charged to the Customer at Elevation's discression.
13. Terms of Payment
(a) ELEVATION CREATIVE STUDIOS reserves the right:
(i) to invoice the Customer for disbursements (including but not limited to postage) incurred by ELEVATION CREATIVE STUDIOS and any such invoice shall be due and payable immediately;
(ii) to require the Customer to provide payments on account for work done, or to be done, and expenses incurred, or likely to be incurred on the Customer's behalf;
(iii) to suspend work until such payments are made.
(b) All other invoices shall be paid in full within 28 days of the date of invoice unless otherwise agreed in writing.
(c) Without prejudice to any other remedy available to it ELEVATION CREATIVE STUDIOS shall be entitled to charge interest on overdue invoices at the rate of 5 per cent per annum above the Lloyds TSB base rate from time to time in force and such interest shall accrue at such rate after as well as before any judgment.
(d) Goods or services supplied to or commenced at the request of an agent for the Customer shall be chargeable to that agent as well as to his principal.
Proofs of all work may be submitted for the Customer's approval either as hard copy or electronic PDF proofs and ELEVATION CREATIVE STUDIOS shall not be liable for any errors not corrected by the Customer in such proofs. ELEVATION CREATIVE STUDIOS shall not be liable for any errors not corrected following the Customers final sign-off, whether given in writing, electronically or as a verbal approval. The Customer's alterations and additional proofs necessitated thereby shall be charged as additional charges.
When style, type or layout is left to ELEVATION CREATIVE STUDIOS' judgement, changes therefrom made by the Customer shall be charged as additional charges. No responsibility will be accepted for any errors in proofs approved by the Customer.
15. Variations in Quantity
ELEVATION CREATIVE STUDIOS will endeavour to deliver the correct quantity ordered but estimates are conditional on margins of 5 per cent for work in one colour only and 10 per cent for other work being allowed for overs or shortage which shall be charged or deducted as appropriate.
16. Property and Risk in Goods
(a) The Customer shall be deemed to have accepted the goods and services on delivery, but ELEVATION CREATIVE STUDIOS shall retain ownership of all designs, materials and goods produced by it to the order of the Customer until all goods and services provided to the Customer have been paid for in full.
(b) The risk in the goods shall pass to the Customer upon delivery which for the avoidance of doubt means from the commencement of unloading activities or when collected from ELEVATION CREATIVE STUDIOS by the Customer or its Agent as the case may be.
(c) Metal film, electronic data and other materials owned by ELEVATION CREATIVE STUDIOS or its supplier and used by ELEVATION CREATIVE STUDIOS for example in the production of film setting, negatives, positives, plates, etc shall remain the exclusive property of ELEVATION CREATIVE STUDIOS or its supplier as the case may be.
(d) Any material made available to ELEVATION CREATIVE STUDIOS by or on behalf of the Customer shall, while it is in the possession of ELEVATION CREATIVE STUDIOS or in transit, be at the Customer's risk and ELEVATION CREATIVE STUDIOS shall not be liable for any 1099 or damage to such materials however caused and the Customer shall insure the said material accordingly.
(e) (i) Electronic data may be erased from memory and lithographic, or other work effaced immediately after the order is completed unless written arrangements are made to the contrary, whereupon a storage fee may be charged to the Customer.
(ii) ELEVATION CREATIVE STUDIOS shall be entitled to destroy any other materials supplied to it by, or on behalf of the Customer upon the earlier of 12 months after they come into ELEVATION CREATIVE STUDIOS possession or one month after written notice has been given by ELEVATION CREATIVE STUDIOS to the Customer.
(f) ELEVATION CREATIVE STUDIOS shall be entitled to make a reasonable charge for the storage of any Customer's property left with ELEVATION CREATIVE STUDIOS before receipt of the order or after notification to the Customer of completion of the work.
17. Materials Supplied by the Customer
(a) ELEVATION CREATIVE STUDIOS may reject any paper, disks, plates or other materials supplied or specified by the Customer, which appear to ELEVATION CREATIVE STUDIOS unsuitable. Additional costs incurred if materials are found to be unsuitable during production may be charged to the Customer.
(b) Where materials are so supplied or specified by the Customer, ELEVATION CREATIVE STUDIOS will take every reasonable care to secure the best results, but responsibility will not be accepted for imperfect work caused by defects in, or unsuitability of materials 90 supplied or specified.
(c) Quantities of materials supplied shall be sufficient to cover normal spoilage.
(d) Any additional costs incurred by ELEVATION CREATIVE STUDIOS where disks, etc., are supplied by the Customer without adequate instructions, that result in re-running may at the discretion of ELEVATION CREATIVE STUDIOS be charged to the Customer.
18. Periodical Publications
A contract for the printing of a periodical publication shall not be terminated by either party unless 13 weeks notice in writing is given in the case of periodicals produced monthly or more frequently or 26 weeks notice in writing is given in the case of other periodicals. Such notice may be given at any time but whenever possible should be given after completion of work on any one issue.
19. Indemnity and Illegality
(a) ELEVATION CREATIVE STUDIOS shall not be required to print any matter, which in its opinion is, or may be of an illegal or libellous nature, or an infringement of any proprietory or other right of any third party.
(b) The Customer shall indemnify ELEVATION CREATIVE STUDIOS and keep it indemnified against all or any costs, claims, damages, demands and expenses (including legal costs) which may be incurred by or made against ELEVATION CREATIVE STUDIOS by any third party by reason of the supply of ELEVATION CREATIVE STUDIOS' goods or services in accordance with the Customer's instructions.
20. Claims Against ELEVATION CREATIVE STUDIOS
(a) ELEVATION CREATIVE STUDIOS reserves the right at any time to alter its product specification without giving prior notice to the Customer.
(b) ELEVATION CREATIVE STUDIOS shall not be liable to the Customer for any damage to goods, delay in delivery or 1099 or partial 1099 of goods in transit unless the Customer notifies ELEVATION CREATIVE STUDIOS in writing within seven days of delivery failing which the goods shall be conclusively deemed to have been accepted by the Customer.
(c) In any event ELEVATION CREATIVE STUDIOS shall not be liable for any consequential 1099 however arising.
The Customer shall be responsible for effecting all necessary insurance in respect of any 1099, damage, or expense that it may suffer directly or indirectly in relation to the provision or non-provision of ELEVATION CREATIVE STUDIOS' goods and services.
22. Suspension and Termination
ELEVATION CREATIVE STUDIOS shall be entitled:
(a) to suspend its performance of the contract if and for so long as the Customer shall be in breach of any of its obligations; and
(b) to terminate the contract without notice in the event of the bankruptcy, insolvency or liquidation of the Customer at any time or the levying of any distress, execution or other legal process upon the Customer's assets or in the event of a receiver being appointed over all or any part of ELEVATION CREATIVE STUDIOS' assets or in the event of a continuing breach by the Customer of any of its obligations.
The waiver or non-enforcement by ELEVATION CREATIVE STUDIOS of any breach or non observance of any of these Conditions shall not prevent the subsequent enforcement of these Conditions in full and shall not be deemed a waiver of any subsequent breach.
24. Force MaJeure
ELEVATION CREATIVE STUDIOS shall not be liable for any delay or failure to perform any of its contractual obligations as a result of war, flood, storm, riot, fire, accident, civil commotion, acts of god, government action, failure of power supply, equipment failure, lock out, strike, default or failure of subcontractor or suppliers or any other cause beyond its reasonable control and ELEVATION CREATIVE STUDIOS shall not be liable for any damage or expense suffered by the Customer or any third party arising directly or indirectly from any of such matters.
(a) These Conditions shall not be varied, waived or modified except in writing under the hand of a duly authorised officer of ELEVATION CREATIVE STUDIOS.
(b) These Conditions override any differing conditions, which may appear on the Customer's order form or other document.
(c) ELEVATION CREATIVE STUDIOS reserves the right to vary these Conditionfrom time to time subject to giving prior written notice to the Customer.
(d) Any provision of these Conditions, which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of these Conditions.
(e) The headings used herein are for convenience only and shall not affect the meaning or construction of these Conditions.
Any notices required to be given under these Conditions shall be in writing and shall be served by prepaid first class letter addressed to the party to which it shall be sent at its principal place of business or such other address as may have been notified pursuant to this provision to the party giving the notice and shall be deemed to be delivered 48 hours after posting.
27. Proper Law and Jurisdiction
These Conditions shall be governed and construed according to English Law and the parties irrevocably submit to the non-exclusive jurisdiction of the English Courts.
27.1 Unless otherwise specifically agreed between us, either party can terminate this Agreement (after any applicable minimum period) at any time by giving one week's written notice to the other.
27.2 Either we or you shall be entitled to terminate this Agreement immediately by written notice to the other if the other commits any material breach of this Agreement and, in the case of a breach capable of remedy, fails to remedy it within 7 days after receipt of a written notice giving full details of the breach and requiring it to be remedied.
27.3 Either of us can also terminate this Agreement if the other is the subject of a bankruptcy order (or the equivalent in any other jurisdiction) or the other becomes insolvent or make any arrangement or composition with, or an assignment for the benefit of, its creditors or if any of its assets are the subject of any form of seizure. If either of us is a company, the other can terminate this contract forthwith if the first party goes into liquidation, either voluntary or compulsory, or if a receiver or administrative receiver or administrator is appointed.
27.4 In addition to our termination rights set out earlier, we may, at any time and at our sole option, either suspend your access to the Services under this Agreement until you give suitable undertakings or terminate this Agreement immediately if:
27.4.1 you breach any term of this Agreement; or
27.4.2 any charge remains unpaid by you for more than 28 days after the receipt of its invoice by you.
28.1 We warrant to you that we will seek to supply the Services with reasonable skill and care. We accept liability for our own negligence, but only to the extent stated in this clause.
28.2 Nothing in this Agreement shall be construed as restricting or excluding our liability for death or personal injury resulting from our negligence or for fraud or, to the extent that such rights may not be contracted out of, as affecting the statutory rights of any person dealing as a consumer.
28.3 Our total liability to you under this Agreement shall not exceed the amount paid by you for the particular Services.
28.4 Subject to the immediately preceding sub-clause, we shall be liable to you in respect of all direct loss or damage caused by our acts or omissions and those of our employees, agents or sub-contractors, other than Excluded Loss. In this clause the expression "Excluded Loss" means all special loss (whether or not the possibility of such loss arising on a particular breach of contract or duty has been brought to our attention at the time of making this contract) and loss, corruption or destruction of data or loss of profits, business or anticipated savings, whether incurred directly or indirectly, or any indirect or consequential damage whatever, either in contract, tort (including negligence) or otherwise.
28.5 For the avoidance of doubt, in no event shall either party be liable to the other for any indirect or consequential loss of any nature and howsoever caused.
28.6 We do not have any implied obligation, duty or liability in contract other than those explicitly stated in this Agreement.
29.1 You are not entitled to transfer or assign this Agreement without our prior written consent. We may sub-contract part of this Agreement but we shall still be fully liable to you for its proper performance.
29.2 Any notice required or permitted to be given by either party to the other under this Agreement shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified under this provision to the party giving the notice.
29.3 This contract excludes and/or supersedes any previous statements or agreements between us whether written or oral relating to the provision of the Services.
29.4 No waiver or any amendment to these terms shall be effective unless in writing and signed by both you and us.
29.5 A person who is not a party to these terms may not enforce any of them under the Contracts (Rights of Third Parties) Act 1999.
29.6 If any dispute arises out of these terms we will both attempt to settle it by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure. (See www.cedr.co.uk). Unless otherwise agreed, the mediator shall be appointed by CEDR. If the parties have not settled the dispute by the mediation within 42 days of the start of the first meeting held under such procedure, the dispute may be referred to litigation by either party.
29.7 This Agreement shall be governed by the laws of England and we both agree to submit to the exclusive jurisdiction of the English Courts.