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TERMS & CONDITIONS

 

DEFINED EXPRESSIONS

 

Client

The person stated under the contract details.

 

Insolvency

A party: (i) calls a meeting of creditors or become the subject of a report or proposal to creditors, application, petition, arrangement or order under the Insolvency Act 1986 (unless for the purpose of a solvent restructuring, amalgamation or merger); (ii)  a receiver is appointed over a party’s property; (iii)  the holder of any charge or other security over a party’s property takes any step to enforce that security; or (iv)  a party’s property becomes the subject of distress, process, execution or a charging order

 

Intellectual Property

All copyright, format rights, design rights and trademarks whether or not capable of registration and whether actually registered or not (including any applications for registration of the same) anywhere in the world

 

Project Log

The document of that name issued by MYC from time to time that captures progress in the supply of the Services against each Work Order.

 

Work Order

An order in the form set out in the Appendix confirming the Client’s requirements for Services or changes to the scope of the Services on any particular occasion, the fee rates applying for the services, any agreed timescales and the arrangements for invoicing any staged or periodic payments.

 

Works

Any documents, images, sound or other files to be supplied by MYC as part of the Creative Services, in any medium or format whether hard copy or electronic.

 

1.1 The expressions “writing” and “written” include e-mail and other forms of electronic communication that allow for a permanent electronic record of the communication and an e-mail will be considered delivered upon receipt by the sender of a read receipt or reply that references the sent e-mail.

 

1.2 References to a person includes legal as well as natural persons.

 

1.3 References to a clause include any sub-clauses of that clause.

 

2 Creative Services and Intellectual Property

 

2.1 MYC acknowledges that this Agreement applies to the provision of Services by MYC to the Client prior to the date of this agreement.

 

2.2 MYC will provide the Services:

 

2.2.1 In a professional manner and to a standard to be expected from a skilled professional provider of services similar to the Services;

 

2.2.2 In time to meet any deadlines and dates agreed insofar as they relate to the Services.

 

2.3 The Client acknowledges that:

 

2.3.1 MYC will use all reasonable commercial efforts to meet any timescales referred to in the Brief set out in any Work Order or agreed by the parties in any other communications between MYC and the Client.  Any timescales agreed will be extended by any periods following the date on which MYC has (being reasonable) requested feedback, input or information from the Client and the date that such feedback, input or information is sent by the Client.

 

2.3.2 MYC has the right to procure parts of the Services from MYC’s selected sub-contractors but MYC will remain responsible for delivery of the Services notwithstanding any such subcontracting.

 

2.4 MYC will invoice for the Services either on delivery of the Works or as otherwise set out in the Work Order.  The Client will pay MYC’s invoices within 14 days of the invoice’s date of receipt (invoices may be sent electronically).  MYC may in some circumstances require certain payments in advance where MYC has to make significant outlay for third party services as part of the delivery of the Services. The costs of such Services shall be identified and approved by the Client in writing in advance and must be paid in full before MYC places any order for such services.  Once the Works in each Work Order are complete and paid for, MYC has no right to ask for any extra charges unless the client asks for modifications after the end of any period allowed for changes in that work Order.

 

2.5 All Intellectual Property in the Works and any other materials provided by MYC to the Client is and will remain at all times the property of MYC until MYC’s invoices have been paid in full. Upon receipt of payment the Intellectual Property will become jointly owned between MYC and the Client.  For the avoidance of doubt Intellectual Property in any concept rejected by the Client will remain the property of MYC.  The terms of jointly-owned Intellectual Property shall be as follows:

 

2.5.1 MYC may only use the Intellectual Property for the purposes of marketing and advertising its services to other clients and MYC should not copy or distribute concepts created for the Client to other clients.

 

2.5.2 The Client may use the Intellectual Property in connection with the advertising promotion distribution and sale of products and services that are the subject of the Works worldwide via any media or platform in perpetuity..

 

2.5.3 Neither party will be entitled to exploit the Intellectual Property in the Works except as specifically set out above without the prior written consent of the other. In particular; the Client will not imply that the Client is the creator of the Works and will use reasonable efforts to ensure that any third parties to whom the Intellectual Property is distributed comply with the terms of this clause (but will not be liable for the acts or omissions of such third parties provided reasonable efforts were made to notify such third parties of the terms of this clause).

 

2.6 The Client reserves the right to resize artwork, ads and images provided by MYC without any approvals. If required by the Client, MYC reserves the right to charge for time incurred in reviewing and improving final layout work submitted to MYC by the Client. If requested, MYC may (at its discretion) provide the Client with end-artwork in its final form (e.g. print-ready PDF; simplified layered work; DVD master; outlined EPS file). However unless specifically provided for in the Work Order or otherwise agreed in writing MYC is not obliged to provide clients with original artwork or HTML code (for example an InDesign file, layered Photoshop file, Illustrator file or HTML source file) or any working or development files, rejected concepts and designs, images or documents generated by MYC.  In certain circumstances MYC may agree to provide these files of the Works to the Client in return for a one-off payment.  In such cases this will be recorded in writing in advance.

 

2.7 Each party hereby warrants and represents to the other that any images, copy or other materials submitted for incorporation into the Works may be used without restriction or licence from any third party and that by incorporating such images, copy or other materials the Intellectual Property rights of any third party will not be infringed.

 

2.8 The Client warrants and represents that it will not use the Works for any pornographic, defamatory or unlawful use.

 

2.9 This Agreement is personal to the both parties and (except where MYC uses the services of third parties as contemplated by clause 3.4) may not be delegated, assigned or subcontracted in whole or in part without the prior written consent of the other party.

 

2.10 Where relevant, the Client will respond promptly to requests from MYC for information and guidance in connection with the Services from time to time.

 

2.11 The parties recognise that sometimes the Brief may need to change as the result of changes in the Client’s requirements or a new requirement.  Any such changes or new requirements that are more than minor or immaterial will be recorded in a Work Order and MYC will have no obligation to begin work until the Work Order is approved and signed off by the Client.

 

2.12 The Fees include presentation of a maximum of three rounds of creative development and presentation. If the Client (acting reasonably) is unsatisfied following the presentation of three rounds then either party may terminate the Work Order and the Client will pay the Fees due to MYC.

 

2.13 The Client must notify any defects or problems in relation to the Works provided, within 14 days of the date of receipt of MYC’s final invoice and MYC is not liable for any claims made after that date.

 

3 General

 

3.1 Either Party may immediately terminate this Agreement by written notice to the other Party if:

 

3.1.1 The  other Party becomes Insolvent;

 

3.1.2 The other Party commits any material breach of this Agreement that cannot be remedied;

 

3.1.3 The other Party commits any remediable material breach of this Agreement which is not remedied within 30 working days of a written notice identifying the breach and requiring its remedy.

 

3.2 This Agreement constitutes the whole agreement and understanding of the parties and supersedes any previous arrangements, understanding or agreement between the parties relating to the subject matter of this Agreement. Save as expressly provided, and to the extent only that they may be lawfully excluded by contract, this Agreement excludes any warranty, covenants, conditions or undertakings which may be implied by law.  Nothing in this clause operates to limit or exclude any liability for fraud.

 

3.3 No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.

 

3.4 This Agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England and Wales and the parties irrevocably agree that the Court of England and Wales have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.

 

3.5 Nothing in the jurisdiction agreement in clause 4.4 shall prevent MYC from issuing proceedings to protect any Intellectual Property of MYC in any other jurisdiction worldwide.

 

3.6  If this agreement is lawfully terminated by either party under the terms of clause 3.1 the Intellectual Property in the Works will remain jointly owned under the terms of this agreement.

 

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