Terms and Conditions
1. all intellectual property rights in work created pursuant to the commission shall belong to the designer. the designer may display the deliverables in the designer’s portfolios and websites, and in galleries, design periodicals and other exhibits for the purposes of professional recognition. the designer may publicly describe its role in the project.
2. the client, or the client’s customer where the client is working as an intermediary for a named person, is granted a licence to reproduce the work created pursuant to the commission solely for the purpose of the commission.
3. such licence is conditional on full payment by the client of all invoices.
4. the rights under the licence may not be assigned or sub-licensed without the written consent of the designer.
5. the designer shall be credited as ‘Will Howe Creative’ wherever the work created pursuant to the commission is reproduced or published in any format.
6. the designer is entitled to no less than four copies of all booklets, flyers, posters, stationary, packaging, dvds, or other materials produced using the work created pursuant to the commission.
use of sub-contractors
7. the designer may use other persons to perform any or all of the work required under the commission.
8. where the terms and conditions of a sub-contractor are more restrictive or exclusory than the provisions of this agreement, the work provided by a sub-contractor will be governed by the terms and conditions of the sub-contractor rather than the provisions of this agreement.
9. should the client not be satisfied with the work created pursuant to the commission, the client may reject the artwork at the rough stage.
10. in the event of rejection, the client shall remain liable for 50% of the final fee and all licences that may have been granted to the client under this agreement shall be revoked with immediate effect.
11. if the client changes the brief and requires changes, additions or variations to the work created pursuant to the commission, the designer may charge additional fees.
12. the designer may refuse to carry out changes, additions or variations which substantially change the nature of the commission.
13. without prejudice to the other remedies or rights the designer may have, the designer shall be entitled to terminate the contract immediately on the occurrence of the following events:
a. the client refusing to provide instructions necessary to allow the designer to complete the commission;
b. the client refusing to pay two consecutive invoices within thirty days of their date;
c. the client failing to provide information necessary to allow the designer to complete the commission;
d. the client becoming insolvent or an order being made or a resolution being passed for the winding up of the client (other than voluntarily for the purpose of solvent amalgamation or re-construction), or an administrator, administrative receiver or receiver being appointed in respect of the whole or any part of the client’s assets or business, or the client making any composition with its creditors or taking or suffering any similar or analogous action in consequence of debt.
14. on notification of termination, all outstanding obligations of the designer come to an end and the client is required to immediately pay the final price for the commission.
15. the client warrants that all necessary permissions have been obtained for the use of reference material, information or artwork supplied by the client or its customer.
16. the client shall indemnify the designer against all claims and expenses including reasonable legal fees arising from the designer’s use of such materials.
17. the designer may charge the client for all costs and expenses incurred in performing the commission, included but not limited to travelling, photocopying, printing, intellectual property licences, courier services and postage.
18. the designer shall be entitled to invoice the client monthly or on completion of the commission.
19. the client shall pay all invoices within thirty days.
20. interest of 2% per year above the base lending rate of HSBC Bank plc accruing daily will be applied to any sums that remain unpaid thirty days after the date of invoice.
21. for as long as invoiced sums remain unpaid, the designer is not obliged to perform further work.
22. the client shall not be able to apply set-off against any sums invoiced.
limit of liability
23. except in the case of death or personal injury caused by the designer’s negligence, the liability of the designer under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever shall not exceed the sum of the amounts paid by the client to the designer under this agreement.
24. the designer shall not be liable to the client in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.
25. the client acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement.
26. neither the client or the designer shall have any liability under or be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from circumstances beyond the reasonable control of that party.
27. the party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
28. if such circumstances continue for a continuous period of more than 6 months, either the client or the designer may terminate this agreement by written notice to the other party.
29. this agreement contains the whole agreement between the client, or the client’s customer, and the designer and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter. nothing in this agreement excludes liability for fraud.
30. no failure or delay by the designer in exercising any right, power or privilege under this agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. the rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.
agency, partnership etc
31. this agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the designer and the client or the client’s customer other than the contractual relationship expressly provided for in this agreement. neither party shall have, nor represent that it has, any authority to make any commitments on the other party’s behalf.
32. if any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this agreement.
governing law and jurisdiction
33. the validity, construction and performance of this agreement shall be governed by english law and shall be subject to the exclusive jurisdiction of the english courts to which the parties submit.
34. for the purposes of the contracts (rights of third parties) act 1999 this agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.