Mustard Design Terms and Conditions

1              GENERAL
1.1           The Terms and Conditions set out below and the specification overleaf shall govern the order (the Contract) placed with Mustard Design Limited and/or associated companies.

1.2           In these Terms and Conditions ‘the Company’ means Mustard Design Limited and their servants and agents; ‘the Customer’ means the company or person on whose behalf the work is undertaken and ‘the Goods’ means products manufactured or sold or work, service or advice performed by ‘the Company’.

1.3           No variation of these Terms and Conditions and no other Terms and Conditions shall be valid or effective unless expressly accepted in writing by a Director of the Company.

1.4           Any subsequent order placed with the Company shall likewise be subject to these Terms and Conditions unless expressly otherwise agreed in writing by a Director of the Company.

1.5           Should the Company undertake work commissioned by an agent acting on behalf of the Customer these Terms and Conditions shall be binding on the Customer on whose behalf the agent is acting.

2              THE ESTIMATE
2.1           When the Company supplies estimated costs as a guide the best endeavours are made to ensure these costs reflect the work being considered. However, they are not a quotation and do not form the basis of any Contract. All estimates are valid for 30 days, then subject to review.

3              THE CONTRACT
3.1           All estimates are given subject to confirmation by the Company on receipt of order.

3.2           The Contract is made when the Company accepts the order.

4              PRICE, PAYMENT AND RISK
4.1           Unless otherwise stated all prices are ex works and exclusive of VAT where applicable.

4.2           Upon the Customer being notified, whether orally or in writing that the Company has accepted the order, the Customer shall pay in accordance with the terms offered by the Company:

4.2.1        The Customer shall be liable to make payment of any non-refundable deposit required overleaf. The Customer shall pay in full for any Goods at the time of collection of the Goods or rendering of the invoice – whichever is the sooner. Where prior arrangements are made for the Company to arrange delivery of the Goods by a carrier, payment shall have been made in advance to the Company, unless the carrier is to collect the payment cash on delivery and/or

4.2.2        With prior agreement the Company shall have the right to a non-refundable deposit and stage payments as work proceeds. Payment of such shall be effected prior to commencement of the next stage of work.

4.3           If requested to do so in writing or orally by the Customer, the Company may agree to delivery of the Goods to be made to an address stated by the Customer, in which event the Customer shall pay the Company’s costs for delivery, which shall be added to the original Contract price and is subject to VAT at the standard rate.

4.4           In respect of any Contract where the delivery date is more than two months after the Contract date, the Company may increase the Contract price pro rata to any increase in the price of labour or materials between those two dates.

4.5           The Company shall have the right to vary the Contract price in the event of increased costs caused by or attributable to:

1. unforeseen increases in wages, salaries or materials and/or
2. delay caused by failure of the Customer to provide appropriate information to enable timely completion, preparation or delivery of the Goods and/or
3. unforeseen overtime worked at the request of the Customer and/or
4. change or alteration in design, quality or specification or production details by the Customer and/or
5. correction of errors made by the Customer

4.6           Should the Customer fail to make any payment required in respect of any work to be carried out on his behalf, whether prior to commencement of such work or during production of such work, then the Company shall have the right to deem such failure to be repudiation of the Contract (in which case it shall so inform the Customer in writing) without prejudice to any other right or remedy of the Company:

4.6.1        To cancel the remainder (if any) of the Contract concerned and recover from the Customer damages for any loss suffered by the Company as a result of such cancellation and/or

4.6.2        Cancel any other Contract or the remainder of any other Contract, which the Company may have with the Customer and recover from the Customer damages for loss suffered by the Company as a result of such cancellation.

4.6.3        The Company shall be entitled to interest from the due date on the unpaid amount accruing on a daily basis at the rate prescribed by the Late Payment of Commercial Debts (interest) Act 1998; and

4.6.4        The Company shall have the right to suspend any further work under the particular Contract or any other Contract until payment is made in full and in addition shall have the right by notice in writing to the purchaser to treat any such Contract as repudiated by the purchaser and to recover all losses and expenses suffered by the Company as a result of such repudiation.

4.7           The title in any Goods sold shall not pass to the Customer until all sums outstanding (including interest) from the Customer to the Company, whether in respect of the Goods or for any other reason whatsoever shall have been paid in full by the Customer.

4.8           Notwithstanding that the title in any Goods may not have passed to the Customer, the Goods shall be at the risk of the Customer from the time the Company has notified the Customer that the Goods are available for collection or alternatively has delivered the Goods as applicable.

4.9           The Company shall be entitled to bring an action for outstanding monies whether or not the Customer has effected collection/delivery of the Goods.

4.10         The Company reserves the right to make a charge to Customers who do not arrive at times mutually agreed for photographic shoots, design sessions or meetings, without reasonable prior notice.

5              CREDIT FACILITIES
5.1           The Company may agree to grant a 30 day credit facility to the Customer, subject to suitable references and a duly completed application form. In the event of an application by a Limited Company or Partnership, such application must be signed by a Director or Partner. Signature of such application shall constitute the personal guarantees of all Directors or Partners for the amount of any outstanding debts in respect of any work undertaken, consequent upon the original credit facility being granted and any other course of action by the Company against the Customer arising from Goods supplied during the subsistence of such guarantee.

5.2           The Directors personal guarantee shall not be invalidated by any such forbearance or extension as the Company may in its absolute discretion afford to the Customer but shall be determinable by the Director upon the expiry of notice of termination in writing, sent to the Company by first class recorded delivery post, such notice not to expire before a period equal to the term of the credit afforded plus 10 days from the recorded date of posting.

5.3           Termination of the Directors personal guarantee shall not invalidate his liability for the whole amount unpaid of any sum due to the Company (or for any other cause of action by the Customer pursuant to this agreement) in relation to Goods supplied prior to the expiry of the Directors notice of termination.

5.4           A breach by the Customer of any of these conditions of business shall entitle the Company forthwith, upon written notice, to withdraw any credit facility whereupon alls sums invoiced by the Company to the Customer shall immediately become due and payable but without prejudice to any other remedy of the Company under these conditions.

6              SPECIFICATIONS
6.1           The parties recognise that in the printing trade a print run may not produce exactly the quantity ordered. They hereby agree and declare that tolerance of 10% shall be applied to the quantity ordered and that the Contract price may be adjusted to the quantity actually produced.

6.2           The parties further recognise that reproduction of a particular colour cannot be guaranteed nor can precise dimensions and they agree that a reasonable colour match and dimensions reasonably similar to those ordered shall constitute performance of the Contract made between them.

6.3           In particular it is agreed that the colour of transparencies, the colour of an in-house colour print-out or image supplied on CD and that of the finished Goods may differ.

6.4           The Company will provide a colour proof on request and the cost to the Company of so doing shall be added to the Contract price.

6.5           If the Customer does not request a colour proof the Company shall not be liable for any variation of the colour of the finished Goods.

6.6           The Company will, prior to printing, send the Customer a black and white or colour proof of artwork. The Customer must signify in writing its approval or, as the case may be, any amendment to the proof. Such approval means that the Customer accepts the proof as approved or amended and the Company shall in no way be responsible for any errors or omissions in the proof that are not brought to our attention, irrespective of blame. All amendments are chargeable to the Customer as author’s corrections.

6.7           In the event that the Customer provides artwork, it will be deemed as correct and no proofs or amendments will be required unless expressly requested in writing by the Customer.

6.8           The Company shall not guarantee the incorporation of any amendments once the filmwork has been produced.

6.9           If the Customer specifies a form of layout for the Contract work and/or attends photographic sessions, the Company will use its best endeavours to produce the form of layouts so specified and to comply with any instructions given by the Customer but shall be the ultimate arbiter in respect of the same PROVIDED THAT, in any event, the Company shall not be put to any expense not covered by the Contract price in respect of any matter referred to in this clause.

6.10         Should it be necessary for the Company to use the services of any third party on the instructions of the Customer, the Company cannot be held responsible for any negligence or failure to perform by said third party.

6.11         All materials or other work used in any production may be effaced immediately after delivery of the Goods unless the Customer gives written instructions to the contrary prior to commencement of work. In consideration of the Company retaining or preserving the same at the request of the Customer, the Company shall be entitled to make such charge as it considers appropriate in the circumstances.

6.12         Illegal matter –

1. the Company shall not be required to print any matter which in their opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights of any other third party.
2. The Company shall be indemnified by the Customer in respect of any claims, costs and expenses arising out of any libellous matter or any infringement of copyright, patent, design or of any other proprietary or personal rights contained in any material printed for the Customer. The indemnity shall extend to any amounts paid on a lawyer’s advice in settlement of any claim.

7              CUSTOMER’S PROPERTY
7.1           All property the Customer provides to the Company in connection with any work to be undertaken by the Company shall be entirely at the Customer’s own risk and the Company shall in no way be or become liable for any loss or damage thereto howsoever arising.

7.2           If any property supplied by the Customer for the creation of the Goods, fails to perform in an expected matter or malfunctions, the Company has the right to claim payment for any consequential loss, damage or extra expenses incurred.

7.3           Wherever practicable, all property supplied by the Customer shall be returned at the Customer’s expense and request.

7.4           It is deemed that all of the Customers’ property is insured by the Customer.

7.5           The Customer shall be liable for any physical loss or damage and consequential loss arising therefrom, following accidents or damage of the Company’s employees, equipment or premises caused by any goods supplied or actions undertaken by the Customer on the Company’s premises.

8              DELIVERY, DELAY AND CANCELLATION
8.1           Delivery shall take place at the Company’s nominated point of delivery, which shall be at the Company’s premises unless the Contract specifically provides otherwise.

8.2           Time shall not be the essence of the Contract.

8.3           Any times stated for delivery are a bona fide estimate only and whilst the Company will use all reasonable endeavours to meet any such times stated for delivery, the Company shall have no liability in respect of any delay in delivery howsoever caused.

8.4           Force Majeure – The printer shall be under no liability if he shall be unable to carry out any provision of the Contract for any reason beyond his control including (without limiting the foregoing) act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the Contract. During the continuance of such a contingency the Customer may, by written notice to the printer, elect to terminate the Contract and pay for work done and materials used, but subject thereto shall otherwise accept delivery when available.

8.5           On the occurrence of any event out of the Company’s control the Company shall ipso facto be entitled to cancel the Contract without any liability in respect of such cancellation and the Customer shall pay the Company in full for all work undertaken by the Company up to the date of such cancellation.

8.6           In no circumstances shall the Customer have the right to cancel this Contract without the Company’s written agreement; if such agreement is given or if the Contract is terminated pursuant to the provisions of condition 8.5, the Customer will indemnify the Company against all losses (including loss of profit) suffered by the Company arising out of such cancellation.

8.7           Claims in respect of faulty Goods will not be entertained unless the subject of written claim be submitted to the Company within three days of delivery. In the event that such claims are found to be justified then the Company’s liabilities shall be extended only to further reproduction of the material required to the original specification without extra charge.

8.8           Should the Company require the Customer to perform any action or supply material necessary for the Company to complete the Contract, then the Company shall be entitled to treat any failure by the Customer to comply with the Company’s request, as breach of the Contract. The Company shall in consequence thereof be entitled to make an appropriate charge to cover reasonable costs, expenses and loss of revenue caused by such a breach.

9              INTELLECTUAL PROPERTY RIGHTS
9.1           The Customer warrants that all work undertaken shall not infringe any registered design, copyright, design-copyright or trademark and shall indemnify the Company against all damages, penalties and expenses in respect of any claim made or liability incurred resulting from the carrying out of work in accordance with the Customer’s specifications and/or instructions whether expressed or implied.

9.2           The Company reserves all rights protected by Statute, Licence, Registration or Common Law vested in it by way of registered designs, copyright, design-copyright or trademarks or trade secrets in all documents, drawings, designs, plans or other original work or any Goods or materials, written, drawn or manufactured by the Company and the same shall remain the property of the Company and the Customer shall not reproduce them or cause or permit them to be reproduced without the written consent of a Director of the Company.

1. The entire copyright in the photographs is retained by the Company at all times worldwide.
2. Title to all photographs, negatives, prints, transparencies or other such material be it physical or electronic, remains the property of the Company at all times unless written consent has been given by a Director of the Company to permit them to be reproduced.
3. The Company retains the right in all cases to use the Goods in any manner, at any time and in part of the world, for purposes of advertising or otherwise promoting the Company’s work, unless expressly requested in writing not to do so by the Customer.

10            LIEN
10.1         The Company shall have a specific lien over the Goods and over any property of the Customer in the possession of the Company from time to time in connection with the Contract until the price for the Goods has been paid.

11            DETERMINATION OF CONTRACT
11.1         If the Customer shall make default in or commit a breach of Contract or of any of his obligations to the Company, or if any distress or execution shall be levied upon the Customer’s property or assets, or if the Customer shall make or offer to make any arrangement or composition with his or its creditors or commit any act of bankruptcy, or if any petition or receiving order in bankruptcy shall be presented or made against him, or if the Customer is a limited company and any resolution or petition to wind up such company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented, or if a Receiver of such company’s undertaking, property or assets or any part thereof shall be appointed, the Company shall have the right forthwith to determine any Contract then subsisting with the Customer and upon written notice of such determination being posted to the Customer’s last known address any subsisting Contract shall be deemed to be determined but without prejudice to any claim that the Company may have in respect of any antecedent breach by the Customer of any of his obligations under the said Contract.

12            ASSIGNMENT
12.1         The Customer shall not assign or transfer or purport to assign or transfer this Contract or the benefit thereof to any other person whatsoever.

13            HEADINGS
13.1         The headings of these Conditions are provided for convenience only and shall have no effect on the interpretation thereof.

14            GOVERNING LAW AND JURISDICTION
14.1         All Contracts between the Company and the Customer shall in all respects be governed by English Law and all disputes which may arise out of or in connection with these Terms and Conditions or any Contract between the Company and the Customer or in respect of any Goods supplied or to be supplied under any Contract shall be subject to the exclusive jurisdiction of Kingston County Court or such other County Court as may from time to time be notified in writing by the Company to the Customer (the Company and the Customer agreeing to the jurisdiction of such Court notwithstanding that the amount involved in such dispute may exceed such Court’s jurisdiction).