MORF DESIGNS LIMITED TERMS AND CONDITIONS OF BUSINESS
1. THE CONTRACT
1. Terms and Conditions - These terms and conditions ('Conditions') set out the terms upon which Morf Designs Limited agree to provide professional services pursuant to a contract ('Contract'). Morf may accept reasonable modification to these terms but such agreement must be in writing signed by a Director of Morf Designs Limited and cannot be inferred from a course of behaviour. These Terms govern the Contract to the exclusion of any other terms subject to which any order or quotation is accepted or purported to be accepted or any order is made or purported to be made by the Buyer and these Terms shall be deemed to have been delivered first and last in time.
2. Services - Morf Designs Limited supplies its clients ('the Client') with design and consultancy services specified in a fee proposal ('Fee Proposal') relating to the Client's identity, business, literature, branding, strategic market positioning and the packaging, promotion and sale of goods and services ('Services') for a specific project ('Project').
3. The Contract will come into existence upon either:
1. Acceptance - The written acceptance by Morf Designs Limited of an order for Services from the Client; or
2. Acknowledgement - The written acknowledgement by Morf Designs Limited of an authority to proceed given by the Client in accordance with a Fee Proposal
4. (in both cases incorporating these Conditions). Morf Designs Limited reserves the right not to start work on a Project until it is in possession of a written authority to proceed from the Client.
5. Entire Agreement - The Contract, when formed, shall constitute the whole agreement between Morf Designs Limited and the Client and both parties confirm that they have not entered into contractual relations on the basis of any representations (to include statements about price, availability, delivery, design quality and specification) that are not expressly incorporated into the Contract provided however this is not intended nor shall it exclude any liability of either party for fraudulent misrepresentation.
2. INSTRUCTIONS, INFORMATION AND SUPPORT
1. Client's Responsibility - It is an express condition of the Contract that the Client shall be solely responsible for providing Morf Designs Limited with all necessary instructions, information and support concerning the Services, the Project (to include the Client's goods, the market, any relevant legal or regulatory controls and generally) and the Client's requirements. The Client's knowledge and commercial information about such matters and its requirements are vital and Morf Designs Limited shall not be responsible for any shortcomings in such information.
2. Incomplete Instructions - The Client shall be liable for all costs and expenses incurred as a result of any failure by the Client to provide full or proper instructions .
3. Communications - Morf Designs Limited cannot guarantee that e-mails sent to it or it's agents or representatives will be received and all critical communication should be sent or confirmed by personal delivery, post or fax. Morf Designs Limited is not obliged to verify any instructions.
4. Discretion - In the absence of precise instructions, and in the event of the Client or his representative being unavailable for clarification at the appropriate time, Morf Designs Limited reserves the right, without liability, to use its professional discretion in execution.
3. QUALITY
1. Tolerances - Where the Service includes the supply of goods or materials, the Client accepts reasonable tolerances in respect of colour and quantity. The Client acknowledges that a final printed product may differ in colour from that shown on any proof. Where the Client requires the final colouring of a printed product to accord substantially with the proof then this must be stipulated as part of the initial brief so that the cost of procuring this can be incorporated into the Fee Proposal.
4. DELIVERY TERMS
1. Time - The specified delivery times of the Services stated by Morf Designs Limited are reasonable estimates. Time shall not be of the essence in any respect unless Morf Designs Limited has expressly agreed so in writing.
2. Client Response - The Client recognises that for Morf Designs Limited to be able to perform the Services in a timely fashion and to meet any agreed timetable then the Client must also respond to the enquiries of Morf Designs Limited relating to the Services or the Project in a timely fashion, to include the signing off and approval of materials submitted to it for such purpose and the giving of instructions in relation to the Project as requested. The Client acknowledges that should it fail in this regard Morf Designs Limited is unlikely to be able to perform the Services within an agreed time period.
3. Variations - The Client acknowledges that any agreement to perform additional work as part of a Project or any variation of the Services is likely to effect the ability of Morf Designs Limited to perform the Services within the specified time, and increase the costs of the Project.
5. TERMS OF PAYMENT
1. Credit - Credit accounts will be opened on receipt of two satisfactory trade references. Until a credit account is established all business will be on a cash-sale basis unless otherwise agreed in writing.
2. Payment Details - Accounts are payable to Morf Designs Limited, PO Box 1829, Newport NP19 7YA. Unless otherwise agreed, credit accounts are to be paid in full within 30 days of receipt of invoice. Morf Designs Limited reserves the right to withdraw credit facilities at any time.
3. Invoice - Morf Designs Limited will usually render an account prior to the commencement of each stage of work and reserves the right to render an interim account at any time.
4. Invoice Queries - Any queries as to the amount of the invoice should be raised, in writing, within seven days of receipt, otherwise the account invoiced will be deemed to be agreed. The Client is not entitled to withhold payment of, or make deductions from, invoices by reason of any claim or alleged claim and all rights of set off are excluded.
5. Advance Payment - Morf Designs Limited reserves the right at it's discretion to invoice a client in advance up to 50% of the total design fee and/or costs and will not be obliged to commence work on the Services or a Project until this has been settled.
6. Overdue Accounts - Amounts outstanding over 60 days from the date of invoice may, at Morf Designs Limited's option, be subject to an interest charge of 2% per month from the date of invoice on the outstanding balance. Morf Designs Limited reserves the right to recover from the Client all costs incurred in the recovery of overdue accounts. Morf Designs Limited reserves the right to suspend all Services to a Client on all Projects whilst any invoice is outstanding.
7. VAT - All prices quoted are exclusive of VAT which shall be charged at the appropriate rate.
6. COSTS/CHARGES
1. Cost Variations - Quotations (whether or not forming part of a Fee Proposal) are based on information provided by the Client, and current costs of production and are subject to amendment after 30 days to meet any rise in such costs.
2. Rush Fees - Any part of the service that requires expedited delivery must be expressly agreed, and an additional charge may be made.
3. Sub-Contractors and Charges - Where Morf Designs Limited undertakes to arrange and appoint specialist facilities on behalf of the Client (photography, illustrations, printing, exhibition contracting and the like), quoted rates from those facilities are passed on to the Client in good faith. In the event of additional charges being made by such facilities or if any additional expenses arise which could not have reasonably been anticipated other than as a result of negligence by Morf Designs Limited, Morf Designs Limited reserves the right to invoice those additional charges to the Client.
4. Expenses - Unless agreed as part of the Services the Client will reimburse Morf Designs Limited costs for necessary travel, subsistence and other out of pocket expenses incurred by Morf Designs Limited during the provision of the Services.
5. Management Charge - Morf Designs Limited reserves the right to add a management charge to the cost of bought in or sub contracted Services in accordance with industry practice.
6. Modifications - Morf Designs Limited will charge at it's current rate for additional work necessitated by reason of corrections or modifications or changes required to the Services or after work has been approved by the Client (to include any Client led changes to dates for delivery of the Services and/or alterations in style).
7. Postponements - Should production be postponed or suspended at the request of the Client, or delayed through his default, for a period of 30 days or more, Morf Designs Limited shall be entitled to payment for work already carried out and for materials specially ordered.
8. Delivery Costs - The Client will be charged for all delivery costs unless otherwise agreed.
7. PROOFS
1. Approval - Proofs may be submitted, for the Client's approval, whether in artwork, printed or photographic form, shall be dealt with promptly and Morf Designs Limited accepts no liability for errors not identified by the Client.
2. Preliminary Work - Charges may be made for all preliminary work executed, experimental or otherwise, at the Client's request.
8. CANCELLATION/SUSPENSION
1. Client Cancellations/Suspension - A Client may by notice in writing cancel or suspend a Contract. Morf Designs Limited reserves the right to charge for all work carried out up to the time of any cancellation, and to charge for any materials or services specially delivered or ordered which cannot be cancelled.
2. Morf Designs Limited's Cancellation/Suspension - Morf Designs Limited has the right to terminate the Contract at any time if it believes its professional reputation or its standing is threatened by its continued involvement with the Project if the Client stops trading or commits an act of bankruptcy or if a Liquidator, Receiver or Administrator is appointed or if the Client enters into an arrangement with its creditors or if Morf Designs Limited has reasonable grounds to believe that the Client may not discharge its fee obligation to Morf Designs Limited.
3. Suspension - Following notice of suspension Morf Designs Limited may at any time decline to undertake any further work on the Project and it shall be at its complete discretion as to whether to maintain any design team that was assembled for the Project
9. LIABILITY
1. Liability - Morf Designs Limited shall not accept liability for delay, loss or damage caused by carriers, as long as Morf Designs Limited can provide proof of despatch.
2. Claims - Claims arising from damage, delay or partial loss of goods (including designs) in transit must be made in writing to Morf Designs Limited within 3 days of delivery. Claims for non-delivery must be made within 28 days of despatch.
3. Limitation - Morf Designs Limited shall only be liable in tort or contract or general law up to the value of the defective work under the Contract in respect of the Project provided that nothing in these conditions shall limit the liability of Morf Designs Limited for death or personal injury arising as a result of its negligence or the negligence of its agents.
4. Force Majeure - Morf Designs Limited shall not be responsible for any failure caused by events beyond its reasonable control.
5. Client Stipulations- Morf Designs Limited shall not be responsible for any failure of any materials or items stipulated by the Client to be used in relation to the Project.
6. Third party rights - Morf Designs Limited shall be under no liability to the client for any actions, costs, claims or demands suffered in respect of any infringement or alleged infringement of third party rights save insofar as such infringement is due to the negligence or default of Morf Designs Limited.
7. Limitation of loss - Except in respect of death or personal injury caused by the negligence of Morf Designs Limited, Morf Designs Limited shall not be liable to the Client by reason of any representation (unless fraudulent) or any implied warranty, condition, or other term, of any duty at common law or under the expressed terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Morf Designs Limited, its employees or agents or otherwise) which arise out of or in connection with the supply of the Services (including any delay in supplying or any failure to supply the Services in accordance with the Contract or at all) or their use or resale by the Client and the entire liability of Morf Designs Limited under or in connection with the Contract shall not exceed the price of the Services, except as expressly provided in these Terms
8. Subcontract - Morf Designs Limited accept responsibility for the work of its subcontractor unless they have been stipulated by the Client.
9. Orders communicated verbally - While every effort will be made to ensure accuracy, risk of error with orders rests entirely with the Client. Verbal orders should be confirmed immediately in writing or by fax
10. A claim by the Client which is based on defective work or failure to correspond with any specification shall (whether or not delivery is refused by the Client) be notified to Morf Designs Limited within 7 days from the date of delivery (or where the defective or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the failure or defect. If delivery is not refused and the Client does not notify Morf Designs Limited accordingly the Client shall not be entitled to reject the work and Morf Designs Limited shall have no liability for such defect or failure and the Client shall be bound to pay the price as if the work had been delivered in accordance with the Contract.
10. DISPOSAL OF MATERIAL
1. Disposal - Artwork, digital files, printing plates, screens, blocks, negatives, positives, slides, sketches, magnetic disks and tapes, type matter and the like may be effaced or destroyed by Morf Designs Limited after they have been used in a Project and are no longer needed unless there is a written arrangement to the contrary.
11. CLIENT'S PROPERTY
1. Film Processing - Whilst processing standards are carefully monitored, and every care taken of any film processed by Morf Designs Limited, whether sent direct by the Client for the express purpose of processing, or as a constituent part of Morf Designs Limited's Services, Morf Designs Limited's liability for process failure, loss or damage is limited to the replacement of equivalent unexposed film or to the current trade price of unexposed film. The Client should ensure against the loss of any images on film.
2. Suitability - Where materials, artwork, photographs, slides, discs, films, negatives, positives, paper and the like are supplied by the Client, Morf Designs Limited reserves the right to reject such material if it is, in the opinion of Morf Designs Limited, unsuited for the production process involved. Any costs incurred in altering, amending or substituting unsuitable material may be charged to the Client.
3. Delivery Date - Where a promised delivery date is given in good faith, and material supplied by the Client is subsequently found to be incomplete, unsuitable, or requiring alteration, Morf Designs Limited shall, if it requests, be granted an appropriate extension to the delivery date, or decline production.
4. Quantity - Quantities of material supplied by the Client shall be adequate to cover normal production spoilage.
5. Third Party Materials - All third party reports, materials, specifications, proposals and information supplied to Morf Designs Limited in connection with the Project are held by Morf Designs Limited and will be worked on as necessary at the Client's risk. Clients are advised to ensure that they retain copies of such items provided to Morf Designs Limited during the course of any Project. The Client is advised to insure high value property supplied to Morf Designs Limited.
12. INTELLECTUAL PROPERTY
1. Client Indemnity - Work involving any form of copying, whether by way of drawings, digital files, photographs, films, magnetic tapes, prints or otherwise is undertaken strictly on the understanding that the Client holds full legal title to any copyright involved. The Client shall indemnify Morf Designs Limited in the event of any copyright infringement. In the event of uncertainty, Morf Designs Limited reserves the right to contact potential owners for clarification.
2. IP Rights - The copyright and/or design rights and/or moral rights and all other intellectual property rights recognised anywhere in the world in any work originated or created by Morf Designs Limited ('the Intellectual Property') belongs exclusively to Morf Designs Limited and are hereby asserted.
3. Licence - Conditional upon the payment of all fees due to Morf Designs Limited the Service includes an exclusive licence (non exclusive in respect of any features and aspects of the Services that are generally found in Projects of a similar nature and which do not give uniqueness to the Project) in respect of the Intellectual Property in the final design work selected by the Client for implementation to use it for the purpose of the Project only but, for the avoidance of doubt, this shall not include the right to modify or alter the work unless expressly agreed.
4. Rough work - Under no circumstances shall any work in a rough or uncompleted form be used or published as finished work or otherwise without the prior express written approval of Morf Designs Limited.
5. Storage of Materials - Following completion of a Project Morf Designs Limited may retain art work and materials as part of it's own records but unless it shall have expressly agreed to do so as part of a brief it shall not be obliged to do so.
6. Infringement - Morf Designs Limited warrants that its work shall be original and will not knowingly infringe third party rights.
7. Searches - Unless Morf Designs Limited expressly agrees otherwise, it shall not be under any obligation to make any search or enquiry with regard to third party rights such as trademarks, registered designs or market searches.
8. Confidentiality of Ideas and Concepts not implemented - The ideas and concepts put forward by Morf Designs Limited as part of the Services but which are either rejected by the Client or which do not form part of the final implemented work for any reason shall be the confidential know how of Morf Designs Limited and the Client shall not seek to use such ideas for any purpose and shall keep such confidential know how secret and shall not disclose it to any third party until the same shall come into the public domain other than by reason of a breach of a duty of confidentiality due to Morf Designs Limited or for a period of 1 year whichever is the longer.
9. Services not included in the Contract - The Services shall not include, and Clients are reminded that they must obtain all relevant licences for the use and operation of, inter alia, proprietary software, type faces and/or any media upon which materials delivered by Morf Designs Limited as part of the Services are stored.
10. Moral right - Morf Designs Limited asserts its right to be identified as author of any design work which has been created as a result to the commission, and any publication of that work or reproduction thereof on any finished product shall bear a clear and distinctive credit to Morf Designs Limited in a form and manner approved by Morf Designs Limited. Any publicity given to the work produced by Morf Designs Limited, as part of the Services shall give Morf Designs Limited reasonable accreditation, and Morf Designs Limited reserve the right to publicise work carried out for any client.
11. Multi designs - If more than one design is chosen by the Client and this was not provided for in the agreed brief for the Services an additional fee may be payable by the Client.
12. Sub contractors - Morf Designs Limited will use all reasonable endeavours to secure the relevant Intellectual Property rights of its freelancers, contractors and sub contractors.
13. Illustrators and photographers - Clients are reminded that illustrators and photographers usually retain ownership of the original illustration or photograph and may demand its return undamaged although this should not restrict the Client's use of any illustration or photograph within the negotiated usage rights.
13. PITCHES
1. Fees - All pitches (other than those where purely the credentials of Morf Designs Limited are shown) shall be charged for at a previously agreed fee.
2. Intellectual Property - All Intellectual Property rights to any material created by Morf Designs Limited and shown as a pitch remains with Morf Designs Limited.
3. Ideas and Concepts - All ideas and concepts of Morf Designs Limited which are disclosed to a Client as part of a pitch are confidential and to remain the property of Morf Designs Limited and unless the same shall come into the public domain other than by a reason of a breach of a duty of confidentiality due to Morf Designs Limited, the Client shall not use any such ideas or concepts itself or disclose them to a third party without the written permission of Morf Designs Limited.
14. CONFIDENTIALITY
1. Confidential Information - Each party shall owe the other a duty to preserve the confidential information of the other (being information of a confidential nature not in the public domain and the disclosure or misuse of which would foreseeably damage the goodwill, business or reputation of the other.)
2. Duty to Inform - In the event that the Client shall have cause to disclose to Morf Designs Limited specific commercially sensitive information then it shall so inform Morf Designs Limited who will comply with the Client's reasonable requirements in this regard.
3. Non Solicitation - Whilst Morf Designs Limited are providing Services and for a period of six months following the later of:
1. Completion of the Project on which Morf Designs Limited was engaged; or
2. Completion of any other business Contract between Morf Designs Limited and the Client
4. the Client will not contact or engage the services of or employ any person who was and remains an employee of Morf Designs Limited during such period except with the written consent of Morf Designs Limited.
15. GENERAL
1. Illegal Matter - Morf Designs Limited shall not be required to reproduce in any form matter which, in the opinion of Morf Designs Limited, is or may be of an illegal, defamatory or contentious nature. Morf Designs Limited shall be indemnified by the Client in respect of any claims, costs and expenses arising out of any such matter produced by Morf Designs Limited or the infringement of any industrial or intellectual property right.
2. Title and Risk - The risk in all goods shall pass to the Client upon delivery, but legal and beneficial ownership shall remain with Morf Designs Limited until full payment has been received and any cheque or other negotiable security has been honoured. The Client shall pay all accounts in full and not exercise any right to set-off or counterclaim against invoices submitted.
3. Implementation - Unless otherwise agreed as part of the Services in the case of graphic design, full responsibility for implementation, displaty, electronic integration and compatibility, back up and production and manufacture shall remain with the Client.
4. General Lien - Without prejudice to other remedies, Morf Designs Limited shall, in respect of all outstanding debts due from its Clients, have a general lien on all goods and property in Morf Designs Limited's possession (whether worked on or not), and shall be entitled, on the expiration of 14 days notice, to dispose of such goods or property as Morf Designs Limited thinks fit, and to apply any proceeds towards such debts.
5. Dispute - In the event of any dispute that cannot be resolved by the individuals with responsibility for the Contract then upon the request of either party, senior representatives of Morf Designs Limited and the Client shall meet to discuss the problem and try to reach an acceptable compromise. The parties will consider mediation as a method of resolving any dispute.
6. Headings - The headings and sub-headings are inserted for convenience only, and shall not affect the construction of these Conditions of Business.
7. Contractors - The Client will be solely responsible for matters concerning contractors and sub contractors that it specifies or nominates and shall take reasonable steps to ensure that they are aware of and comply as appropriate with these conditions so that they co-operate fully with Morf Designs Limited
8. Samples - The Client shall provide Morf Designs Limited free of charge with a reasonable number of samples of any work carried out in connection with a brief.
9. Publicity - Morf Designs Limited reserves reasonable rights of publicity as a provider of Services to the Client generally and specifically in respect of any work produced as part of a brief provided that where relevant such work shall already be in the public domain.
10. Third party rights - A person who is not a party to the Contract has no rights to enforce any term of the Contract pursuant to the Contract (Rights of Third Parties) Act 1999. This shall not effect any right or remedy of a third party that exists or is available independent from that Act.
11. Assignment - The Contract is personal to the parties hereto and cannot be assigned in whole or in part.
12. Severability - Any of these provisions which may be unenforceable shall (to that extent) be severable.
13. Notices - All notices shall be in writing and either delivered personally or sent by first class recorded delivery pre-paid post which shall be deemed duly served in the case of a notice delivered personally at the time of delivery and in the case of a notice sent by post two clear business days after the date of despatch. Each notice shall be addressed to the required office or the principal place of business of the party concerned or to such other address as the party shall have previously have notified to the other in writing.
14. Law - The Contract shall be governed by English law and the parties submit to the non exclusive jurisdiction of the English courts.