These terms of business (the “Terms”) govern all Contracts between Episode Two, a company registered in England and Wales and whose registered office is located at Registered Office: Westbury Court, Church Road, Westbury-on-Trym, Bristol BS9 3EF (“Episode Two”)and you, the person, firm, company, or other party with whom Episode Two enters into a Contract either directly or indirectly (the “Client”). These Terms shall govern all Contracts to the exclusion of all other terms or conditions and no conduct by Episode Two shall constitute acceptance of any other terms or conditions.
1.1 In these Terms (unless the context otherwise requires) references to:
“Background IP” means an Intellectual Property, other than IP Rights, used in connection with the Work which is used in performing a Contract which Episode Two owned or had a right to use before entering into the Contract, and any tools or methodologies used by Episode Two to create the IP Rights, including without limitation the Draft Materials;
“Contract” means any contract for Work howsoever made between Episode Two and the Client;
“Draft Materials” has the meaning given in clause 10.4;
“Final Work” means the Work which is selected by the Client from the range of Draft Materials produced by or on behalf of Episode Two as being the final Work in relation to a Contract;
“Intellectual Property” means any patent, registered design, copyright, database right, design right, topography right, trade mark, service mark, an application to register any of the aforementioned, trade secrets, right in unpatented know- how, right or confidence or any other intellectual property right anywhere in the world;
“IP Rights” means any Intellectual Property that arises or is obtained or developed by Episode Two in respect of the creation of the Final Work;
“Work” means any services (including but not limited to graphic design, structured design, design services and preparation of other promotional material) and/or any goods or materials (including but not limited to printed material, point of sale materials, manufactured items, marketing consultancy, design planning, photography and illustrated work) to be supplied or produced by Episode Two pursuant to a particular Contract, including without limitation the Final Work; and
“Contact Report” means a document produced by Episode Two setting out its understanding of the scope of the Work.
1.2 Each Contract with Episode Two shall be subject to these Terms and any terms specified or referred to in writing signed by an authorised signatory of Episode Two in the relevant purchase order, Contact Report or estimate. These Terms constitute the entire agreement between the parties and supersede any other terms and conditions (including any form of purchase order) contained in or referred to in any acknowledgement of order, form of contract, letter or other communication sent by the Client to Episode Two.
1.3 No waiver by Episode Two of any right or remedy shall be effective unless in writing (not by email) or and shall not be deemed to be a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, not shall it prevent or restrict the further exercise of that or any other right or remedy.
1.4 If any of these Terms are held to be invalid or unenforceable, the other terms shall continue in full force and effect.
1.5 Headings are intended for reference only and do not affect the construction or interpretation of these Terms.
Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorize either party to make or enter into commitments for or on behalf of the other party. Each party confirms that it is acting on its own behalf and not for the benefit of any other person.
2. ESTIMATE AND FORMATION OF CONTRACT
2.1 Episode Two and the Client will endeavour to establish the Work to be provided and the basis of Episode Two’s charges prior to any Contract taking effect. Episode Two may provide a Contact Report and/or estimate of the cost to the Client of providing the Work, which may be broken down into stages.
2.2 Any estimate or Contact Report given by Episode Two is an invitation to the Client to appoint Episode Two to undertake the Work in accordance with these Terms and any other terms referred to in the estimate or Contact Report. All estimates and Contact Reports are subject to withdrawal at any time before Episode Two accepts the appointment by the Client and shall lapse unless the Client makes the appointment within the stated period of validity or (if none) within thirty (30) days of issue of the estimate or Contact Report.
2.3 Episode Two reserves the right not to commence Work or accept any appointment until the Client submits to Episode Two a purchase order or written instructions to proceed.
2.4 The Client may not cancel any purchase order or Contact Report which has been accepted by Episode Two except with the written agreement of Episode Two and in any event, only on terms that the Client shall indemnify Episode Two in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Episode Two as a result of cancellation.
2.5 No variation to the Contract shall be binding unless agreed in writing between the authorised representatives of the parties. Episode Two’s employees or agents are not authorised to make any representations concerning the Work unless confirmed by Episode Two in writing. In entering into the Contract the Client acknowledges that it does not rely on and waives any claim for breach of any such representations (including representations in brochures, catalogues and other marketing materials) which are not so confirmed.
2.6 Episode Two reserves the right to cancel the Contract without liability to the Client at any time before the goods are delivered or the services are performed if Episode Two becomes aware that the Work infringes any applicable laws or regulations, industry standards or any third party rights or involves obscene, libelous or defamatory material. The Client will indemnify Episode Two for any loss, costs, damages, charges, and expenses which Episode Two incurs in respect thereof as a result of the acts, omissions and/or instructions of the Client.
2.7 Any typographical, clerical, or other error or omission in any estimate, acceptance of offer, invoice or other document or information issued by Episode Two shall be subject to correction without liability on the part of Episode Two.
2.8 Any samples, drawings, descriptive matter or advertising issued by Episode Two and any descriptions of the Goods or illustrations or descriptions of the Services contained in Episode Two’s catalogues, website or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.9 The Client shall:
a. Ensure that the terms of any order and any information it provides to Episode Two are complete and accurate.
b. Co-operate with Episode Two in all matters relating to the Services.
c. Provide Episode Two with such information and materials as may reasonably be required in order to supply the Services, and ensure that such information is complete and accurate.
d. Obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
3.1 Unless otherwise agreed by Episode Two in writing, the price for the Work shall be in accordance with its standard charging rates.
3.2 Unless expressly stated to be firm, any prices stated or estimated by Episode Two are subject to variation by Episode Two to reflect increases in costs to Episode Two and variation to Episode Two standard charging rates after the date of the Contract. Episode Two also reserves the right to raise estimates following consultation with the Client where the scale or nature of the Work is different to that anticipated at the time of the estimate or relevant Contact Report.
3.3 Unless otherwise stated in writing by Episode Two, all prices stated are exclusive of any value added tax (VAT), carriage, insurance, special packaging requirements, disbursements and all other taxes, duties and expenses which the Client shall pay to Episode Two where applicable at the rate current at the time of invoicing.
4. PAYMENT AND INVOICING
4.1 Unless otherwise agreed by Episode Two all payments shall be due in sterling in cash or cleared funds thirty (30) days from the date of invoice and shall be paid without any set-off, deduction, withholding or counterclaim, failing which Episode Two shall be entitled to cease all further Work under any or all Contracts with the Client without liability in respect of any loss or damage sustained by the Client as a result.
4.2 The Client hereby agrees to pay each invoice submitted to it by Episode Two in full and cleared funds to a bank account nominated in writing by Episode Two from time to time.
4.3 Subject as expressly agreed by Episode Two or detailed in the relevant estimate or Contact Report, Episode Two may invoice the Client at such times as it shall in its discretion think fit and reserves the right to raise more than one invoice in respect of any Contract.
4.4 Without prejudice to its other rights, Episode Two may charge interest on any overdue payments at the rate of four percent (4%) over the base rate of Barclays Bank Plc (and at 4% when that base rate is below zero) compounded monthly from the due date until payment is made in full both before and after judgement but where the Late Payment of Commercial Debts (Interest) Act 1998 is applicable a rate up to the maximum rate of interest permissible under that Act may be charged.
4.5 Time for payment is of the essence of the Contract.
5. INCURRING COSTS AND CLIENT APPROVALS
5.1 Episode Two shall not purchase production materials or incur costs (other than couriers and special deliveries) chargeable to the Client without the Client’s prior agreement provided always that the Client’s approval of estimates, proofs and Contact Reports will constitute the authority to Episode Two to incur costs identified in them. The Client shall not in any event unreasonably withhold or delay its approval and shall be deemed to approve such purchases and costs if it has not notified Episode Two of its non-approval within a period following receipt of notification of such anticipated purchases and costs which shall be reasonable having regard to the need for any changes which the Client may require and any requirements for publication, distribution or delivery which may exist.
5.2 Episode Two may require pre-payment or the establishment of other payment arrangements satisfactory to Episode Two before entering into any commitment to third parties in relation to a Contract. In any event, Episode Two reserves the right to invoice the Client for disbursements, purchase of production materials and other payments to third parties in accordance with the Contract as the same are incurred.
6. PERFORMANCE AND DELIVERY
6.1 Unless expressly agreed to the contrary in writing all times and dates for performance of services and for dispatch or delivery by Episode Two of the Final Work are estimates only given in good faith but without liability on the part of Episode Two. Time of performance, dispatch or delivery is not of the essence of the Contract.
6.2 Episode Two may dispatch or deliver the Final Work by instalments of such quantities and at such times as it decides.
6.3 In cases where Episode Two expressly agrees to conclude the Contract of carriage and/or arranges for the insurance of the goods during transit, Episode Two shall be deemed to be acting solely as agent of the Client and sub-sections 2 and 3 of section 32 of the Sale of goods Act 1979 shall not apply.
6.4 The Client undertakes to inspect or to procure the inspection of the Final Work at the earliest opportunity after delivery and in any event within forty-eight (48) hours of delivery. Any claim for shortfall in a delivery of the Final Work or claim that the Final Work does not comply with the order confirmed by Episode Two must be notified in writing within three(3) days of delivery. Failure to make any such claim within such period shall constitute unqualified acceptance of the Final Work and waiver by the Client of all claims relating to non-delivery of the Final Work, non-compliance of the Final Work with the order or delivery of the wrong Work or errors on Episode Two invoice as the case may be.
6.5 Episode Two shall be entitled to sub-contract the performance of a Contract to a third party save that any sub- contracting shall not affect the responsibilities and obligations of Episode Two under the Contract.
7.1 Risk in the Final Work shall pass to the Client on their dispatch from Episode Two premises or from Episode Two’s third party sub-contractors.
7.2 If for any reason the Client is unable to accept or procure the acceptance of delivery of Final Work at the time when the Final Work is due and ready for delivery, Episode Two shall if it is reasonably able store the Final Work and take all reasonable steps to safeguard them until their actual delivery and the Client shall be liable to Episode Two for, and shall on demand reimburse Episode Two for, the cost (including insurance) of doing so.
8.1 The Final Work shall remain the property of Episode Two until all payments owing to Episode Two under the Contract and all amounts owing to Episode Two by the Client on any other account have been paid in full in cash or cleared funds. Thereafter, title shall pass in accordance with clause 10. Whilst the Final Work is the property of Episode Two, the Client shall hold the Final Work as bailee for Episode Two and keep it safe, insured and separate and identifiable from all the other goods in its possession, maintaining the Final Work in satisfactory condition and shall give Episode Two such information as Episode Two may reasonably require from time to time relating to the ongoing financial position of the Client.
8.2 If any amounts owed by the Client to Episode Two are not paid in accordance with clause 4.1 Episode Two may (in addition to any other rights it may have) enter any land or buildings where any Final Work is located, repossess and sell the Final Work.
8.3 Episode Two shall have the right to bring an action against the Client for the price of the Final Work at any time notwithstanding that title in the Final Work has not passed to the Client.
9.1 The Client will treat as confidential all ideas, Background Intellectual Property, Draft Materials, designs and creations communicated to it by Episode Two in connection with the Work (including without limitation in discussions or presentations leading to the award of the Contract) and shall not use or disclose the same without Episode Two’s prior written consent unless and until they enter the public domain otherwise than as a result of breach of this term.
9.2 Save as provided for in clause 9.3, Episode Two will treat as confidential all ideas, designs and creations communicated to it in connection with the Work (including without limitation in discussions or presentations leading to the award of the Contract) and shall not use or disclose the same other than for the purposes of doing the Work without the Client’s prior written consent.
9.3 Episode Two shall, with the Client’s consent (such consent not to be unreasonably withheld or delayed), be entitled to display, publish or otherwise set out the Final Work in its marketing, publicity and promotional materials (including without limitation, on or through any Episode Two websites).
10. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY
10.1 Subject to clause 10.2, upon full payment of all monies in accordance with clauses 4.1 and 8.1 Episode Two shall:
a. Assign to the Client all IP Rights supplied in respect of the Final Work (any excluding Background IP which is incorporated in the Final Work) that are necessary to permit the Client to use the Final Work in accordance with the terms of the Contract; and
b. (where applicable) licence the Client to use any Background IP provided as part of the Final Work in accordance with clause 10.3 below.
10.2 All Background IP is and shall remain the exclusive property of Episode Two or its licensors and all rights of Episode Two and its licensors shall remain unaffected by the Contract and these Terms save that they may be licensed in accordance with clause 10.3.
10.3 Where Background IP is provided as part of the Final Work, Episode Two shall grant the Client a non-exclusive, worldwide license to enable the Client to exploit the Final Work in accordance with the terms of the Contract.
10.4 Episode Two retains the Intellectual Property in all creative concepts, drafts, working materials and designs (“Draft Materials”) which are presented by Episode Two but rejected in favour of the Final Work and for the avoidance of doubt, no rights in the Draft Materials shall be granted to the Client.
10.5 The Client warrants that so far as it is reasonably aware it either owns or has the right to use and provide to Episode Two for use in the Contract any ideas, concepts, designs, photographs, illustrations and any other materials which it may provide to Episode Two in pursuance of the Contract.
10.6 The Client shall indemnify Episode Two and its employees and agents against all costs, expenses, liabilities, damages and/or awards (including any direct, indirect or consequential losses) which Episode Two incurs as a result of Episode Two acting on the instructions or representations of the Client, any material provided by the Client infringing third party Intellectual Property rights or arising as a result of the combination, modification, amendment or other use of the Final Work outside the terms of the Contract.
11. SPECIFICATIONS BY THE CLIENT
11.1 The Client warrants that so far as it is aware it has notified Episode Two in writing of all facts and circumstances and has provided all information necessary to enable Episode Two to carry out any Work, preparation, manufacture or modification of the Work or the supply of the services in accordance with requirements and specifications of the Client.
11.2 Episode Two shall not be liable for imperfect Work caused by any inaccuracies in any purchase order, drawing or specification supplied by the Client or a third party that the Client has notified Episode Two in writing is authorised to act on the Client’s behalf.
12. FORCE MAJEURE
12.1 Episode Two shall not be liable for any failure or delay in the performance of its obligations where the same is due to any circumstances outside its reasonable control, including (without limiting the foregoing) war, strikes, lock-outs, industrial action, shortage of supplies, breakdown, reduction in or breakdown of plant or machinery, transport delays, pandemics, epidemics, contagious disease, explosions, acts of God, war or threat of war, accidents, government action, fire, terrorism or criminal acts. If the cause of such suspension shall continue for more than sixty (60) days, either party shall have the right to terminate the Contract upon given not less than seven (7) days’ prior written notice to the other.
13.1 Without prejudice to its rights, Episode Two may terminate the Contract or suspend any future deliveries to the Client if:
a. Any distress execution or other legal process is levied upon any of the Client’s assets
b. The Client ceases to trade or becomes unable to pay its debts as they fall due or a petition is presented or a meeting convened for the purpose of its winding up or the Client enters into liquidation, either compulsory or voluntary, or compounds with its creditors generally or has an administrator, receiver or administrative receiver appointed over all or part of its assets or takes or suffers any similar action in consequence of debt.
c. The Client fails to pay by the due date for payment any monies due from it to Episode Two.
d. The Client commits any breach of the Contract and fails to remedy such breach (if capable of remedy) within a period of thirty (30) days from receipt of notice in writing from Episode Two requesting such remedy.
e. The Client’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
13.2 Termination will not affect the rights of either party accrued at the date of termination nor will it affect the obligations expressed or clearly intended to continue notwithstanding termination.
13.3 On termination of the Contract, the Client shall immediately pay to Episode Two all of Episode Two’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Episode Two shall submit an invoice, which shall be payable by the Client immediately on receipt.
14. NON-SOLICITATION OF EMPLOYEES
14.1 During the term of the Contract and for a further twelve (12) months following the expiration or termination of the Contract (for whatever reason), neither party shall employ or engage directly or indirectly, (without the other party’s prior written agreement) nor make or seek to make any offer of employment or engagement to an employee of the other party’s staff, who have dealt with the other party in the course of the negotiation, conclusion and performance of the Contract. A party in breach of this obligation shall pay to the other compensation amounting to six (6) months’ net salary of the employee under the terms of his or her employment with the party in breach.
14.2 The provisions of clause 14.1 shall not apply if any individual employed by either party responds to a general public offer of employment made by the other party that is not specifically brought to the attention of such individual by that other party.
15.1 Episode Two warrants that all services provided by Episode Two will be performed using reasonable skill and care.
15.2 The Client is responsible for ensuring that the Work stipulated by it is sufficient for its purpose save in so far as the Client’s stipulations are in accordance with Episode Two’s advice in writing and signed by a duly authorised signatory. The warranties given by Episode Two to the Client are only those set out in this clause 15 and no additional warranty, condition, undertaking or term, whether express or implied, statutory or otherwise, as to the performance, satisfactory quality, fitness for purpose or condition of the Work is given by Episode Two. All such warranties, conditions, undertakings and terms are to the fullest extent permitted by law excluded.
15.3 The Client shall not return goods or the Final Work to Episode Two, whether under this warranty or otherwise, unless expressly instructed to do so by Episode Two and all goods returned to Episode Two must be suitably packaged.
16.1 Nothing in these terms shall exclude the liability of Episode Two for: death or personal injury resulting from its negligence insofar as the same is prohibited by UK statute; fraud (including without limitation fraudulent misrepresentation) on the other party; and/or, any other liability that cannot be excluded by law.
16.2 Subject to clause 16.1 and whether or not Episode Two has been advised of the possibility of such loss or damage, Episode Two shall not be liable for any loss of profits, loss of revenue, loss of data, loss of anticipated savings, loss of business and/or loss of goodwill (in each case whether direct or indirect), and/or for any special, indirect, economic or consequential loss or damage howsoever caused (including negligence, breach of contract, delayed delivery and/or misrepresentation).
16.3 Save as expressly provided in these Terms, all terms, conditions, representations and warranties (whether express or implied) are excluded to the fullest extent permitted by law.
16.4 No warranty is given and Episode Two shall be under no liability in respect of parts, materials or equipment not manufactured or printed by Episode Two in respect of which the Client shall only be entitled to the benefit of any warranty or guarantee given by the manufacturer or printer to Episode Two.
16.5 Subject to clauses 16.1 and 16.2, Episode Two’s total liability for damage to tangible property caused by the negligence of Episode Two or its employees shall in no circumstances exceed, in respect of any single event or series of related events, the lower of: (i) the sum of £25,000 (twenty-five thousand pounds); and (ii) the value of the charges paid by the Client under the Contract in relation to which the claim is made.
16.6 Subject to clauses 16.1, 16.2 and 16.5, Episode Two’s total liability in respect of all claims made under these Terms howsoever arising whether in contract, tort or otherwise (including without limitation, negligence, breach of contract, delayed delivery, and/or misrepresentation) shall in no circumstances exceed the price paid by the Client to Episode Two under the Contract in relation to which the claim is made.
17.1 If at any time all or any part of one or more of the provisions of these terms is held by any competent authority to be invalid, illegal or enforceable in any respect under any law, the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
18. THIRD PARTY RIGHTS
18.1 For the purpose of section 1(2) of the Contracts (Rights of Third Parties) Act 1999 the parties state that they do not intend any term of any Contract to be enforced by any third parties but any third party right which exists or is available independently of that Act is preserved.
19.1 The client may not assign or otherwise transfer any Contract or any of its rights or obligations under any Contract to any third party.
20.1 Any notice to given under any Contract must be in writing and (i) delivered personally, or (ii) sent by first class pre-paid post, or (iii) sent by email. In the case of Episode Two, notices delivered by hand or by pre-paid post must be delivered to its registered office, and in the case of the Client to its address in its purchase order or notified to Episode Two in writing by the Client from time to time. Any notice shall be deemed to have been received: (i) if delivered by hand, at the time it is left at the proper address, (ii) if sent by first class pre-paid post, at 9am on the second business day after posting, or (iii) if sent by email, at the time of transmission, or, if this time falls outside of business hours in the place of receipt, when business hours resume.
21. LAW AND JURISDICTION
21.1 These Terms and all Contracts made between Episode Two and the Client shall be governed in accordance with the laws of England and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts.