Terms and Conditions of Business

Last updated April 2009

The following terms and conditions apply to all relationships between you, the client, and ourselves, Mears Ash Limited. We recommend that you read all of the terms and conditions below. If we accept your request for us to provide our Services in relation to a project, you will be legally bound by these terms and conditions. YOUR ATTENTION IS IN PARTICULAR DRAWN TO CLAUSE 9 WHICH LIMITS OUR LIABILITY TO YOU.

1 Definitions

The following terms will have the following meanings in this document:

“Additional Costs” means any amounts additional to the Estimate including a fee for our time based on our standard rates.
“Agreement” means these terms of business as varied from time to time.
“Brief” means the written brief setting out the specifications for the Works provided to us by you or as otherwise agreed in writing between the parties from time to time, and as amended in accordance with Clause 5.
“Content” means any and all logos, trade marks, trade names, documents, pictures, illustrations, scripts, photographs, plans, artwork, files, data or other materials provided by you to us to assist us in carrying out the Services, howsoever provided.
“Disbursements” means incidental expenses incurred by us in the provision of the Services including taxis and delivery costs.
“Estimate” means the written estimated total cost of the Project as described in Clause 2.
“Fee” means a fixed fee agreed by us in advance or our standard rate charged on an hourly or daily basis as set out in our Estimate.
“Final Cost” means the total cost of the Project as stated on our invoice and including the costs described in Clause 2.4.
“IPR” means all patents, trade marks, service marks, copyright, design right, database rights, know-how, processes, trade practices and other intellectual property rights whatsoever, whether registered or unregistered anywhere in the world.
“Licence” means a licence that we enter into with a third party on your behalf in relation to the Third Party Works.
“Materials” means goods which we buy from third party suppliers to enable us to provide the Services.
“Project” means the project set out in your written brief.
“Services” means any and all services undertaken by us to complete a project including the creation of the Works, graphic design, website design and ordering of and obtaining usage rights or Licences for print media and Third Party Works.
“Site” means our website www.mearsash.co.uk and www.mearsash.com and any sub-domains thereof.
“Sub-contracted Services” means any and all services provided by third parties to enable us to provide the Services to you.
“Third Party Works” means any and all works that we supply to you in the course of providing the Services that are created by a third party including artwork and images.
“Use” means the uses and purposes to which the Works or Third Party Works may be put as specified by us or a third party in our Estimate or in a Licence, which may include restrictions as to the media used, the geographical area or the number of individuals that the Works may be distributed to.
“we”, “our”, “us”, “Mears Ash” means Mears Ash Limited, company number 03369943 with its principal place of business at 28 Ashington Road, London SW6 3QJ, 020 7736 6408.
“Works” means any and all works of any kind that we create in the course of providing the Services to you including designs, graphics, advertising copy, reports, brochures, website front end and back end.
“you”, “your”, “yourself”, “the Client” means the person or company requesting provision of the Services.

1.1 The terms “include” and “including” wherever referred to in these Terms means including without limitation and terms in the singular have the same meaning when in the plural form.

2 About our Estimates

2.1 We will provide you with an Estimate in advance of the Project commencing and before we commence providing the Services. The Estimate will include:

2.1.1 our Fee which is based on how long we expect the Project to take, in terms of hours or days. Unless we have agreed a fixed fee in advance, our work will be charged out on an hourly/daily basis at our standard rate as varied from time to time; and
2.1.2 the expected cost of Materials and Sub-contracted Services and usage rights or Licenses for any Third Party Works.

2.2 The Final Cost will sometimes vary from the original Estimate for a number of reasons including:

2.2.1 changes made by you to the Project that we deem to be significantly different from the original Brief.
2.2.2 you delaying, defaulting or otherwise significantly disrupting the Project and its agreed time scales.
2.2.3 unexpected increases in our overheads or expenses.
2.2.4 circumstances occurring that are not reasonably within our control.

2.3 If any of these events occur, we will be entitled to charge Additional Costs which will be included in the Final Cost. Wherever possible we will use reasonable endeavours to advise you in writing before incurring any Additional Costs.

2.4 The Final Cost will include:

2.4.1 our Fee;
2.4.2 any Additional Costs;
2.4.3 the costs of Materials and Sub-contracted Services plus a minimum 17.5 % handling fee;
2.4.4 the cost of any usage rights or Licences for any Third Party Works plus a 17.5% handling fee;
2.4.5 any Disbursements plus a 17.5% handling fee;
2.4.6 any VAT payable on our Fee and other charges that are payable to us, or to a third party.

2.5 The Estimate is valid for thirty days from the date on the Estimate. After the expiry of thirty days, we will provide you with a revised Estimate on request. You accept that a revised Estimate may differ from an original Estimate.

3 Services

3.1 In consideration of the payment of the Final Cost, we agree to provide the Services to you in accordance with the Brief.

3.2 We agree to provide the Services in a reasonably timely manner on the terms set out in this Agreement. Both you and us will agree estimated time scales for the completion of the Services, including the completion of the Works. You agree that these time scales may be amended where the Brief is amended. Time shall not, however, be of the essence.

3.3 Subject to any restrictions in this Agreement, we will as soon as reasonably practicable include any reasonable additional information in, or make any reasonable amendments to the Works that you may request in writing prior to the later of:

3.3.1 the date on which the Works are accepted in accordance with Clause 6 subject to you paying any Additional Costs; or
3.3.2 the date on which the Works are sent by us to a third party.

3.4 You agree that we are entitled to sub-contract any of the Services required for your Project to such third parties as we consider have the appropriate expertise to provide the Sub-contracted Services.

4 About our Invoices

4.1 We will invoice you for the Final Cost at the completion of the Project or for instalments of the Final Cost at the end of each stage of the Project at our discretion.

4.2 You agree to pay the Final Cost in full within, 30 days of the invoice date or, such other time frame stated on the invoice.

4.3 In the event that any amount owed to us under any invoice becomes overdue, we shall be entitled at our sole discretion to take any or all of the following actions:

4.3.1 suspend the Services;
4.3.2 terminate this Agreement in accordance with Clause 10 of this Agreement and;
4.3.3 charge interest on the full amount outstanding on a daily basis at an annual rate of 4% above the National Westminster Bank Plc base rate from time to time until the sum is paid in full.

4.4 We will also be entitled to charge an administration fee to cover the cost of recovering any debts from you.

5 Your Obligations

5.1 You agree to:

5.1.1 provide us with all Content necessary for us to provide the Services under this Agreement or such other items or information as we may reasonably request relating to the subject matter of the Works;
5.1.2 be responsible for the reasonable use and display of the Works and the Third Party Works and only use them strictly for the agreed Use;
5.1.3 mark all Works displayed to the public with a notice reading “Designed by Mears Ash. © Mears Ash Limited [year]. All rights reserved” or, with such other notice as may be required by a third party.

5.2 You shall reasonably co-operate with us at all times to allow us to carry out the Services efficiently.

5.3 You agree to pay for any and all Works and Third Party Works which we consider reasonably conform to the Brief which we present to you, including such Works and Third Party Works that you decide not to use for the Project or do not finally approve under Clause 6.4.

5.4 You agree that we shall have the right to exclude from the Works any Content or element of the Brief which we in our sole discretion consider offensive, libelous, obscene or otherwise unlawful or objectionable.

5.5 If at any time during the continuance of this Agreement, you wish to add criteria to the Brief, such additions must be agreed with us in writing and signed by both parties. We may refuse to make any such additions where it is reasonable to do so and may charge such Additional Costs as we determine are necessary depending on the additions required.

6 Acceptance Procedure

The procedure for the approval of the Works by you will be as follows:

6.1 We will provide you with a proof of the Works in whatever format we deem appropriate for the Project including as a PDF document or in hard copy.

6.2 You will notify us in writing (including by way of email) within the time specified by us whether you accept the Works as set out in the proof.

6.3 In the event that you fail to notify us in writing within the time specified by us when we provide the proof, you agree that you shall be deemed to have accepted the Works as depicted on the proof.

6.4 You may not reject the Works unless they materially fail to comply with the Brief. In the event of rejection, you will give us the reasons for such rejection in writing and we shall then have 14 days, or such other number of days as we agree, to correct any deficiencies or non-conformities of the Works from the Brief and resubmit the rejected Works in accordance with Clause 6.1 which you may not unreasonably reject. Upon the third or any subsequent rejection, either you or us may terminate this Agreement by giving the other 14 days’ notice. In the event that either of us terminate the Agreement under this Clause, the provisions of Clause 10.4 will apply.

6.5 You will be solely responsible for the content of Works accepted under Clause 6.2 as they appear on the proof. We will not be liable for any errors, omissions or discrepancies in the Works which may be present on the proof which you discover after the approval of the Works.

6.6 You acknowledge that once you have approved the proof, we will be entitled to send the Works to a third party providing Sub-contracted Services. You may in limited circumstances as agreed by us and in accordance with clause 3.3 request further reasonable amendments to the Works until the date on which we send the Works to a third party. You agree that you will have no opportunity to request changes to the content of the Works after the Works have been sent to a third party.

6.7 You agree to pay us the Final Cost in respect of any Works for which you have approved the proof in accordance with Clause 4 of this Agreement.

6.8 Your sole remedy under this Agreement in respect of the Works is the correction of the Works in accordance with the procedure in this clause. As set out in Clause 9 and for the avoidance of doubt, you agree that we will not be liable or responsible in any way for any loss suffered by you after approval of the Works including where such loss arises as a result of the actions of a third party.

7 Legal Rights in the Works

7.1 Subject to Clauses 7.4 and 7.5, all IPR relating to any Works produced pursuant to the Services, is owned exclusively by Mears Ash and no right, title or interest in or to any of the same is granted, transferred or assigned to you except that subject to receipt by us of the Final Cost, we grant to you a royalty free perpetual non-exclusive license to use the Works that you accept in accordance with Clause 6 above solely for the agreed Use.

7.2 Further licences must be negotiated with us if you wish to use the Works for any purpose other than the agreed Use.

7.3 You must not alter or modify any of the Works without our prior written agreement. If you have our agreement, any changes must be made by us or under our supervision, at an hourly rate agreed between us.

7.4 You accept that we may reproduce, display or otherwise use the Works for the purposes of promoting our services to potential clients, including by way of display on our Site and in our portfolio.

7.5 You acknowledge that all IPR relating to the Third Party Works is owned by a third party. You are granted the right and licence to use the Third Party Works only for the agreed Use on the terms set out in our Estimate or in a Licence and you warrant that you will use the Third Party Works strictly in accordance with such terms. Under Clause 9, you indemnify us from any loss or damage incurred by us as a result of your breach of this clause.

7.6 If you supply us with any Content to incorporate into the Works or in connection with the project, you warrant that:

7.6.1 you are the owner of all rights in, or have obtained any necessary licence or other legal permission necessary to authorise our use of any of the Content in providing the Services use and reproduce it and
7.6.2 that none of the Content, or our use of it, will infringe any IPR of any third party, nor is it illegal, obscene or defamatory nor does it violate any third parties’ rights of privacy or publicity.

7.7 You hereby grant us a royalty free, non-exclusive license to:

7.7.1 reproduce, modify or otherwise use any Content in providing the Services, including the incorporation of the same into the Works.
7.7.2 reproduce, display or otherwise use the Content and any Works which incorporate the Content for the purposes of promoting the services of Mears Ash to potential clients, including by way of display of the Content on any website owned by us and in our portfolio.
7.8 You provide any Content to us at your own risk. We are not obliged to return the Content to you and will not be responsible for any loss or damage to the Content.

8 Access and Use of Files in File Transfer Protocol Area of Site

8.1 As our client, you may be able to access files from the secure FTP area of our Site which may contain Works and Third Party Works. You shall take reasonable measures to ensure that:

8.1.1 no use of the files, Works and Third Party Works is made available outside of the Use including protecting against access of the files and Works by unauthorised third parties, and in particular;
8.1.2 that the files, Works or Third Party Works cannot be copied or downloaded unless specifically agreed as part of the Use.

8.2 We will not be liable in respect of any use by you of the files (including files that are, or contain, Works and Third Party Works) available in the FTP area once they have been downloaded by you including any use of them on your own website or alterations you make to the files, Works or Third Party Works. You indemnify us against any and all costs, fees, loss or damage caused to or claim brought against Mears Ash arising from any alteration, editing, change or unauthorised use of the files, Works or Third Party Works from the form in which they are submitted by Mears Ash by you or any third party. For the purposes of this clause, submission of the files, Works and Third Party Works by us to you will include our placement of them in the FTP area.

9 Limitation of Liability and Indemnity

9.1 To the maximum extent permitted by law, we hereby disclaim and you waive all warranties, express or implied, with respect to the Services and/or Works, howsoever arising, including, without limitation any implied warranty of satisfactory quality, fitness for purpose and any obligation, liability, right, remedy, claim in tort, notwithstanding any fault or negligence on our part or the part of our subcontractors.

9.2 You shall defend, indemnify and hold Mears Ash harmless from all liability, loss, damages and expenses arising from any breach of this Agreement by you, including a breach of the warranties in Clause 7, and in respect of any claim or legal proceedings brought or threatened against us by a third party as a result of such breach.

9.3 You acknowledge that this clause reflects a fair allocation of risk. Your exclusive remedy for Mears Ash default under this Agreement shall be to obtain the correction of the Works to the extent permitted under this Agreement. You agree that our total liability under this Agreement shall not exceed (death or personal injury excepted) the amount of the Final Cost paid by to you to us for the Project in respect of which the claim arises, including where such liability arises out of our negligence.

9.4 We shall not be liable to you whether in contract, tort, by statute or otherwise in respect of any loss of profits and/or for any special, indirect, incidental or consequential loss or damage arising out of or in connection with this Agreement, including:

9.4.1 financial loss or loss of earnings arising from products or services provided by us,
9.4.2 consequential or third party losses, howsoever arising.

9.5 We shall not be liable for any loss to you arising from delay in delivery of the Works caused by circumstances beyond our control.

10 Termination

10.1 The provisions of this Clause do not limit the legal remedies available to us in relation to this Agreement.

10.2 You agree that we have the right to terminate this Agreement by giving you written notice if:

10.2.1 you break any of your obligations under this Agreement,
10.2.2 you substantially change or call a halt to the provision of our Services in relation to a Project before completion of the Services by us.

10.3 We will be entitled to terminate this Agreement immediately and without notice, if:

10.3.1 you are unable to pay your debts in the ordinary course of business, prove unable to pay your debts, commit an act of bankruptcy or have a bankruptcy petition issued against you; or
10.3.2 if you as, a company, are deemed to be insolvent, unable to pay your debts, or have a winding-up petition issued against you.

10.4 If the Agreement is terminated by either of us, in accordance with Clause 6.4 or this Clause 10, we will be entitled to charge you, and you agree to pay an amount for any Fees, costs of Materials and Sub-contracted Services, Disbursements, any Works or Third Party Works already supplied to you and any other costs resulting from us carrying out your instructions up to the date of termination and you agree that such amount will be payable immediately.

10.5 If you cancel a project, or place it on hold indefinitely, at any stage, we will invoice you, and you agree to pay:

10.5.1 our Fee for the Services provided up to the date on which you notify us of the cancellation or suspension of the Services, in which case our Fee will be our standard hourly rate,
10.5.2 any costs incurred by us for Materials and Sub-contracted Services already ordered or provided for the Project prior to the date on which you notify us of the cancellation or suspension of the Services.

10.6 For the avoidance of doubt, if you instruct us to stop providing the Services or request a suspension of the Services, you will have no right or licence to use Works already completed at the date of your instructions in any way whatsoever unless agreed otherwise between us and you.

11 Illegal Matter

11.1 We reserve the right not to print any matter or incorporate into any Works any Content that we deem illegal, libelous or offensive, or which may be an infringement of the IPR or other rights of any third party or otherwise breach the warranties in Clause7. You indemnify us in respect of any claims, costs and expenses arising out of any such matter or Content. The indemnity shall extend to any amounts paid on a lawyer's advice in settlement of any claim.

12 Force Majeure

12.1 We shall not be liable for a failure to carry out our obligations under this Agreement for any reason beyond our control including Act of God, legislation, theft, 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 provision of the Services.

12.2 If we are unable to carry out our obligations for a continuous period of two weeks then you will have the right to terminate this Agreement by notice in writing to us in which case you will be liable to pay a proportion of the Final Cost up to the termination date.

12.3 If we are able to fulfill our obligations after a delay of less than two weeks, you agree that we will continue to provide the Services with such amendments to the Brief as is required to reflect that delay and you will accept delivery of the Works when available.

13 Notices

13.1 Any notice required or permitted under these this Agreement shall be in writing (which may be by email) and shall be deemed to have been properly given:

13.1.1 48 hours after being posted by first class mail (by airmail if sent internationally) with postage prepaid to the address for us set out in this Agreement and for you as set out in the information we hold on your file or other address notified for the purpose; or
13.1.2 at close of business (17:00 hours local time) on the day of effective transmission if sent by email to the email address we hold on file.

14 General

14.1 No provision of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not party to it.

14.2 This Agreement constitutes the entire agreement between us and replaces any prior agreements, arrangements or understandings, written or oral between Mears Ash and you in relation to any project or the provision of our Services. If there is any conflict between the Website Terms of Use and this Agreement, the provisions of this Agreement will apply.

14.3 We may assign our rights or obligations under this Agreement at anytime. You may not assign your rights or obligations under this Agreement without our prior written consent.

14.4 If any of the provisions of this Agreement are held to be invalid or unenforceable by a court of competent jurisdiction, it is intended and understood by each party that such invalidity or unenforceability will not affect the remainder of this Agreement.

14.5 If any dispute arises in connection with this Agreement, both parties (you and us) agree to meet within 5 working days of a written request from one party to other and in good faith to try to resolve the dispute. This clause shall not prevent any party from taking such legal action as it shall decide and pursuing all legal remedies available to it.

14.6 Both parties agree to keep confidential all information provided by either party to the other and all information relating to this Agreement and the Services and Works. The duty of confidentiality contained in this clause shall not extend to any information which was rightfully in the possession of either party prior to the commencement of the provision of the Services or which is already in the public domain or becomes so at a future date (otherwise than as a result of a breach of this clause).

14.7 This Agreement is governed by and interpreted in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts.

Mears Ash Limited is registered in England and Wales No. 03369943. Registered address: 28 Ashington Road, London SW6 3QJ. VAT No. 696 9919 42.