Alchemy Mill Terms and Conditions for Supply of Marketing Services
The following Terms and Conditions of Service apply to all graphic design, artwork, print and services provided by ALCHEMY MILL LLP
All work is carried out by ALCHEMY MILL LLP on the understanding that the client has agreed to abide by ALCHEMY MILL LLP’s terms and conditions. Terms and Conditions may be changed at any time without prior notice to the Client.
In these Conditions, the following definitions apply:
“Business Day” means a day (other than a Saturday, Sunday or UK public holiday).
“Charges” means the charges payable by the Client for the supply of the Services in accordance with clause 5.
“Commencement Date” as set out in clause 2.2.
“Conditions” means these Terms and Conditions as amended from time to time in accordance with clause 13.1.
“Contract” means the contract between ALCHEMY MILL LLP and the Client for the supply of Services in accordance with these Conditions.
“Client” means the person or firm who purchase Services from ALCHEMY MILL LLP
“Deliverables” means the deliverables set out in the Order.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, 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 knowhow 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.
“Order” means the Client’s order for Services as set out in the quotation document.
“Pre-Existing Materials” means all documents, information and materials provided by ALCHEMY MILL LLP relating to the Services which existed prior to the commencement of this agreement, including computer programs, data, reports and specifications and processes used in the provision of the Services.
“ALCHEMY MILL LLP” means Alchemy Mill LLP registered in England number OC383136 at First Floor, Lumiere, Elstree Way, Borehamwood, Herts, WD6 1JH. Our trading address is The Old Mill, High Beeches, High Beeches Lane, Handcross, West Sussex, RH17 6HQ.
“Services” means the services, including the Deliverables, supplied by ALCHEMY MILL LLP to the Client including PDFs and digital proofs, as set out in the Specification.
“Specification” means the description or specification of the Services provided in writing by ALCHEMY MILL LLP to the Client.
2 BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted when ALCHEMY MILL LLP issues written or emailed acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of ALCHEMY MILL LLP which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by ALCHEMY MILL LLP and any descriptions or illustrations contained in ALCHEMY MILL LLP brochures, 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.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or dealing.
2.6 Any quotation given by ALCHEMY MILL LLP shall not constitute an offer, and is valid for a period of 30 Days from date of issue.
3 SUPPLY OF SERVICES AND DELIVERABLES
3.1 ALCHEMY MILL LLP shall supply the Services to the Client in accordance with the Specification in all material respects.
3.2 ALCHEMY MILL LLP shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. All projects are planned to an agreed schedule. Non-adherence to this schedule by the Client may result in charges and payments as set out in clause 5.
3.3 ALCHEMY MILL LLP shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services. This includes the right to commission external support or outsource any job if it is felt it is in the best interests of the Client.
3.4 ALCHEMY MILL LLP warrants to the Client that the Services will be provided using reasonable care and skill. ALCHEMY MILL LLP cannot guarantee the Client exclusivity of any marketing concept, strategy, design or other intellectual property provided. Therefore ALCHEMY MILL LLP will not accept liability for any alleged claim from the Client or any third party as the result of unintentional similarity in part of whole of a third party’s copyright protected or registered trademark or brand, identity, strapline, colour usage, imagery style and content, product or otherwise. It remains the Client’s responsibility to seek copyright protection if desired for any creative/intellectual property provided to the Client by the Company. The client declares that it holds the appropriate copyright and/or trademark permissions to supply text, images and other data to ALCHEMY MILL LLP for inclusion in printed or other mediums. The ownership of such material will remain with the client, or rightful copyright or trademark owner. Should any text, image or file emerge to have such copyright or royalty usage limitations the client will agree to allow ALCHEMY MILL LLP to remove and/or replace the file. The client agrees to fully indemnify and hold ALCHEMY MILL LLP free from harm in any and all claims resulting from the customer not having obtained all the required copyright and/or any other necessary permissions.
3.5 After the Commencement Date, ALCHEMY MILL LLP will submit to the Client for approval:
3.5.1 Copy layouts, artwork, creative concepts and/or scripts; and
3.5.2 Estimate of the cost of any items payable in addition to ALCHEMY MILL LLP’s original quotation.
3.6 Written or oral approval by the Client of the items specified in clauses 3.5.1 and 3.5.2 will be taken by ALCHEMY MILL LLP as authorisation to proceed with the instruction of third party suppliers as specified in the Order (or which the parties have subsequently agreed upon) in reliance on the Client’s authorisation and the Client shall at all times remain responsible for the costs of these third party suppliers.
3.7 Any claim regarding the quality or condition of the Deliverables must be notified to ALCHEMY MILL LLP within 48 hours of delivery of the Deliverables to the Client. If no such notice is received by ALCHEMY MILL LLP within the time period specified then the Client shall be deemed to have accepted the Deliverables. If the Client does notify ALCHEMY MILL LLP within the 48-hour timeframe then, provided ALCHEMY MILL LLP is given a reasonable opportunity to examine the affected Deliverables, ALCHEMY MILL LLP shall, at its option, correct, repair or replace the affected Deliverables. ALCHEMY MILL LLP shall not be obliged to correct, repair or replace the affected Deliverables where the defect arises because the Client has failed to follow ALCHEMY MILL LLP’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Deliverables or if the defect arises as a result of ALCHEMY MILL LLP following any drawing or design supplied by the Client or if the Client corrects, alters or repairs the Deliverables without ALCHEMY MILL LLP’s prior written consent.
3.8 The risk in the Deliverables shall pass to the Client as soon as they are delivered to the Client. Title to the Deliverables shall not pass to the Client until ALCHEMY MILL LLP has received payment in full (in cleared funds) for the Deliverables any other goods or services that ALCHEMY MILL LLP has supplied to the Client.
3.9 Until title to the Deliverables has passed to the Client, the Client shall hold the Deliverables on a fiduciary basis as ALCHEMY MILL LLP’s bailee and keep the Deliverables separate from all other goods or materials held by the Client so that they remain readily identifiable as ALCHEMY MILL LLP’s property and maintain the Deliverables in satisfactory condition and keep them insured against all risks for their full price from the date of delivery. If before title to the Deliverables passes to the Client the Client becomes subject to any of the events listed in clause 9.1.2 or ALCHEMY MILL LLP reasonably believes that any such event is about to happen and notifies the Client accordingly, then without limiting any other right or remedy ALCHEMY MILL LLP may have, ALCHEMY MILL LLP may at any time require the Client to deliver up the Deliverables. If the Client fails to do so promptly, ALCHEMY MILL LLP may enter any premises of the Client or of any third party where the Deliverables are stored in order to recover them.
4 CLIENT’S OBLIGATIONS
4.1 The Client shall:
4.1.1 ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
4.1.2 co-operate with ALCHEMY MILL LLP in all matters relating to the Services and promptly provide any information relating to the Services in sufficient time to enable ALCHEMY MILL LLP to perform its obligations;
4.1.3 provide ALCHEMY MILL LLP with such information and materials as ALCHEMY MILL LLP may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
4.2 If ALCHEMY MILL LLP’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
4.2.1 ALCHEMY MILL LLP shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the ALCHEMY MILL LLP’s performance of any of its obligations;
4.2.2 ALCHEMY MILL LLP shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from ALCHEMY MILL LLP’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Client shall reimburse ALCHEMY MILL LLP on written demand for any costs or losses sustained or incurred by ALCHEMY MILL LLP arising directly or indirectly from the Client Default.
5 CHARGES AND PAYMENT
5.1 Unless agreed otherwise in writing and subject to clause 5.2, the Charges are as set out in the Order.
A signed purchase order (preferably with a PO number and project value) or email instruction will need to be raised by the Client for the full quoted and agreed amount before ALCHEMY MILL LLP can commence on any job. A separate PO may need to be raised by the Client for any extras such as distribution, storage, deliveries or mailing. Costs are an approximation based on initial brief and ALCHEMY MILL LLP’s understanding of the Client requirements. Subsequent amends, change in brief and/or direction will be chargeable by ALCHEMY MILL LLP at the current studio hourly rate or part thereof.
All charges and prices for services carried out by ALCHEMY MILL LLP are subject to VAT (where applicable) at the prevalent rate and are valid for 30 days.
5.2 All estimated prices quoted, whether written or verbal, are for the listed and mentioned services only. ALCHEMY MILL LLP reserves the right, by giving notice to the Client at anytime, to increase the Charges at any time during the Term due to any event or factor beyond its control including but not limited to:
5.2.1 Any variation of duties or increase in the costs of materials, labour or printing;
5.2.2 Any charge in the Specification requested by the Client;
5.2.3 Any delay caused by the Client.
ALCHEMY MILL LLP reserve the right to charge for cancelled/unmet studio time. The scale of this charge will be dependent upon the out of pocket cost when the cancellation takes place. If at any point during the design or development cycle the Client wishes to cancel, they may do so but ALCHEMY MILL LLP reserve the right to apply a charge. The scale of the charge will be dependent upon what stage the project is at when the cancellation takes place and any other supply costs occurring. ALCHEMY MILL LLP shall have the right to charge an emergency/rush fee. The scale of the charge will be dependent upon the level of inconvenience caused in rearranging the studio schedule and the cost of hiring additional resource to compete the work. This charge is only applicable for requests required within 24 hours.
5.3 ALCHEMY MILL LLP may invoice the Client on completion of the Services. ALCHEMY MILL LLP can raise one or more interim invoice(s) for all or part of the Charges at any time. If the Client fails to accept completion of the Services then ALCHEMY MILL LLP may raise any invoice at any time after the Client has been notified that the Services are finished.
5.4 The Client shall pay each invoice submitted by ALCHEMY MILL LLP:
5.4.1 within the terms stated on the invoice; and
5.4.2 in full and in cleared funds to a bank account nominated
in writing by ALCHEMY MILL LLP, and
5.4.3 time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by ALCHEMY MILL LLP to the Client, the Client shall, on receipt of a valid VAT invoice from ALCHEMY MILL LLP, pay to ALCHEMY MILL LLP such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 Without limiting any other right or remedy of ALCHEMY MILL LLP, if the Client fails to make any payment due to ALCHEMY MILL LLP under the Contract by the due date for payment (“Due Date”), ALCHEMY MILL LLP shall have the right to charge interest on the overdue amount under the Late Payment of Commercial Debts (Interest Act 1998 (as the same may be amended supplemented or re-enacted to reflect the Late Payment Directive 2011 (2011/7/EU)) and the client shall pay the interest immediately on demand. ALCHEMY MILL LLP shall also have the right to appropriate any payments made to ALCHEMY MILL LLP by the Client whether or not relating to the Services as ALCHEMY MILL LLP may think fit in order to pay off the outstanding amounts.
5.7 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against ALCHEMY MILL LLP in order to justify withholding payment of any such amount in whole or in part. ALCHEMY MILL LLP may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the ALCHEMY MILL LLP to the Client.
6 INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in the Deliverables and the Preexisting Materials including creative, software files and related correspondence remain the property – physically, intellectually and in copyright, of ALCHEMY MILL LLP until full payment has been made on the Client’s account and all project costs have been cleared.
6.2 ALCHEMY MILL LLP will use reasonable endeavours to ensure that any third party which is either engaged by it to produce (or which otherwise owns) any creative works or materials in respect of the Deliverables shall agree to assign to the Client any Intellectual Property Rights owned by them in relation to the Deliverables upon payment of their fees.
6.3 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on obtaining a written licence from the relevant licensor on such terms as will entitle ALCHEMY MILL LLP to use such Intellectual Property. ALCHEMY MILL LLP cannot accept any liability for any breach of Intellectual Property.
6.4. If multiple design concepts are submitted, only one concept is deemed to be given by ALCHEMY MILL LLP as fulfilling the contract. All other artwork designs remain the property of ALCHEMY MILL LLP unless agreed in writing. Any design, copywriting, drawing or idea created for the client by ALCHEMY MILL LLP is licensed for use by the client on a one-time only basis and may not be modified, re-used, or re-distributed in any way or form without the express written consent of ALCHEMY MILL LLP
6.5. The Client acknowledges that, in respect of a need to apply to register a trade mark, the Client will check if its Intellectual Property qualifies as a trade mark and will apply to register the trade mark. ALCHEMY MILL LLP cannot accept any liability for any objections or failure to register for a trade mark.
6.6. ALCHEMY MILL LLP reserves the right to use both initial creative concepts and final approved design work for the purposes of ALCHEMY MILL LLP’s marketing activities (both online and offline) unless otherwise requested/agreed with the Client.
7.1 A party (“Receiving Party”) 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 Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
8 LIMITATIONS OF LIABILITY
8.1 The Client will indemnify and keep indemnified ALCHEMY MILL LLP from and against any and all proceedings, claims, damages, losses, expenses or liabilities which ALCHEMY MILL LLP may incur or sustain as a direct or indirect result of or in connection with the use of any information, representation, reports, data or materials supplied to it by the Client including but not limited to the Consumer Protection from Unfair Trading Regulations 2008.
8.2 ALCHEMY MILL LLP does not warrant or guarantee the success of any marketing activity or programme and the Client is responsible for checking the proposed Services and ensuring their accuracy and the veracity of the statements therein. It shall be the responsibility of the client to inspect all proofs submitted for approval and ALCHEMY MILL LLP shall not be liable to the client for any errors not corrected by the client in proofs so submitted. ALCHEMY MILL LLP is not responsible for checking the accuracy of any information or data provided to it by the Client. Once final proofs/materials have been signed-off, ALCHEMY MILL LLP cannot be held responsible financially or otherwise for any errors relating to print, programming or any end product.
All PDFs supplied as a proof by ALCHEMY MILL LLP must be viewed in Acrobat 7 or above by the Client and have the preferences set to ‘Overprint Preview’. ALCHEMY MILL LLP cannot be held responsible for any printing errors resulting from a PDF not viewed correctly. Due to the nature of the processes involved in full colour printing, ALCHEMY MILL LLP does not guarantee that the commissioned work will match the client’s materials in colour, saturation or texture. Clients who require colour reproduction to a specific standard must state the requirement in writing in their order and request a set of wet proofs for each item. An additional charge shall be made to the client for this service.
8.3 The Client warrants that it is not a consumer as defined under the Unfair Terms in Consumer Contract Regulations 1999.
8.4 Nothing in these Conditions shall limit or exclude the ALCHEMY MILL LLP’s liability for:
8.4.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.4.2 fraud or fraudulent misrepresentation; or
8.4.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.5 Subject to clause 8.4:
8.5.1 ALCHEMY MILL LLP shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
8.5.2 ALCHEMY MILL LLP total liability to the Client in respect of all other 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 £1 million.
8.6 The Client acknowledges that the limitations and exclusions contained in these Conditions are reasonable and if they had not been included, the Charges would have been increased significantly.
8.7 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.1.1 the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach;
9.1.2 an order is made or a resolution is passed for the dissolution or winding-up of the other party or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the other party or its trustees, officers, directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver to which entitle the Court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt.
9.2 Without limiting its other rights or remedies, ALCHEMY MILL LLP may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, if the Client becomes subject to any of the events listed in clause 9.1.2 or if ALCHEMY MILL LLP reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the Due Date for payment then ALCHEMY MILL LLP shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and ALCHEMY MILL LLP and may demand payment of the Charges in full which shall be payable forthwith.
10 CONSEQUENCES OF TERMINATION
10.1 On termination of the Contract for any reason:
10.1.1 the Client shall immediately pay to ALCHEMY MILL LLP all of ALCHEMY MILL LLP’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, ALCHEMY MILL LLP shall submit an invoice, which shall be payable by the Client immediately on receipt;
10.1.2 the Client shall return all of ALCHEMY MILL LLP Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then ALCHEMY MILL LLP may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
10.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
10.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11.1 All communications between the parties about this Contract must be in writing and delivered: by hand; or sent by pre-paid first-class post; or by email; to its registered office or such changed address as shall be notified to the other party from time to time.
11.2 Communications shall be deemed to have been received:
11.2.1 if sent by pre-paid inland first-class post, 2 days after posting (exclusive of the day of posting);
11.2.2 if delivered by hand, on the day of delivery;
11.2.3 if sent by email on a working day (in the UK) prior to 4.00pm at the time of transmission and otherwise on the next working day provided the sender can provide a fax delivery confirmation.
12 FORCE MAJEURE
12.1 Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or nonperformance continues for 3 months the party not affected may terminate this agreement by giving 14 days’ written notice to the other party.
12.2 Any party that is subject to a force majeure event shall not be in breach of this agreement provided that it promptly notifies the other parties in writing of the nature and extent of the force majeure event causing its failure or delay in performance.
12.3 Under no circumstances shall the Client be entitled to delay payment because of a force majeure event.
13 GENERAL PROVISIONS
13.1 Any variation of the Contract must be in writing and signed on behalf of both parties. If a court decides that any part of the Contract cannot be enforced, that particular part of the Contract will not apply, but the rest of the Contract will.
14 GOVERNING LAW AND JURISDICTION
14.1 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.
14.2 The parties remotely agree that the courts of England and Wales shall have exclusive jurisdiction to settle any disputes or claims that arise out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
15 PRIVACY AND USE OF DATA
Alchemy Mill LLP
TERMS AND CONDITIONS FOR THE SUPPLY OF MARKETING SERVICES