The following terms and conditions apply to each Order for the supply of services and/or materials received by the Agency from the Client from time to time unless otherwise agreed in writing. The communication of an Order by the Client to the Agency for the supply of services and/or materials shall amount to the Client’s acceptance of these terms. These terms shall take precedence over any terms and conditions of the Client, whether attached to, enclosed with or referred to in any purchase order of the Client or elsewhere. They may not be varied except by written Contract between the Agency and the Client.
In these terms and conditions the following words shall have the meanings given in this clause:
2.1. ‘Agency’ means Lake Creative Limited of Hexagon House, Avenue 4, Station Lane, Witney, Oxfordshire OX28 4BN, a company registered in England number 6729161;
2.2. ‘Contract’ means the contract between the Agent and Client for the supply of Deliverables in accordance with these conditions;
2.3. ‘Client’ means the person, firm or company employing the services of the Agency;
2.4. ‘Quote’ means the description or specification of the Deliverables provided in writing by the Agency to the Client;
2.5. ‘Order’ means the Client’s order for services as set out in the Client’s Brief, or the Client’s acceptance of the Agency’s Quote;
2.6. ‘Brief’ means the written or oral brief of the Client describing the Deliverables, their intended use and any pre-set timings for supply;
2.7. ‘Deliverables’ means the services and/or materials to be supplied by the Agency under the Contract;
2.8. ‘Services Cost’ means the fee to be charged by the Agency for the Deliverables;
2.9. ‘Rights’ means all copyright and related rights, design rights (whether registered or unregistered), patents, rights in trademarks (whether registered or unregistered), database rights and any other intellectual property rights (including all similar or equivalent rights or forms of protection in any part of the world) in or relating to the Deliverables.
3.1. The Order constitutes an offer by the Client to purchase Deliverables in accordance with these Conditions.
3.2. The Order shall only be deemed to be accepted when the Client has signed off the Quote at which point and on which date the Contract shall come into existence.
3.3. The Contract constitutes the entire Contract between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Agency which is not set out in the Contract.
3.4. Any samples, drawings, descriptive matter or advertising issued by the Agency, and any descriptions or illustrations contained in the Agency’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract or have any contractual force.
3.5. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.6. Any Quote given by the Agency shall not constitute an offer, and is only valid for a period of 60 Business Days from its date of issue.
The Agency will use its reasonable care and skill in the production and supply to the Client of the Deliverables as per the Brief and Quote.
In return for the Agency’s production and supply of the Deliverables the Client shall pay the Services Cost as detailed by the Agency in the Quote within 30 days from date of invoice. Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Agency on the due date, the Agency may charge the Client interest at 4% per year above the base rate of the Agency’s bank from time to time accruing daily and compounded annually on every invoice overdue for payment calculated from the date of the invoice until the date of payment whether before or after judgment, and may suspend all of its obligations hereunder until payment has been made in full. The Agency reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
5.1. The Agency reserves the right to require the Client to pay the total Services Cost upfront before the Agency commences any work.
5.2. The Agency reserves the Right to require the Client to pay a percentage of the estimated total Services Cost in advance before the Agency commences any work.
5.3. All rates, quotations or prices given are exclusive of VAT at the prevailing rate unless indicated otherwise.
The Client warrants that the Brief is accurate so far as is possible. As the Services Cost and any pre-set dates for supply of the Deliverables will be agreed on the basis of the Brief and Quote, any changes to it after the conclusion of the Contract whether resulting from alterations by the Client, delay in providing the Agency with materials, information, instructions or authorisations, supply of faulty materials to the Agency by the Client, or any other circumstances beyond the Agency’s control, will be subject to extra charges for the Agency’s time and work and may involve delays in supply. The Client will pay these extra charges and reimburse the Agency for any third party charges or expenses incurred by the Agency on the basis of the original Brief within 30 days from date of invoice.
Unless otherwise agreed in writing, the Agency will arrange and oversee all production and post-production related to the Contract. Should it be agreed that the Client arranges any production work itself, then in that regard the Agency shall not be responsible for the booking, supervision or quality control of any relevant facilities, nor will it be responsible for payment of any related charges.
Approval by the Client of final copy, layouts, scripts, storyboards, designs and the like will be the Agency’s authority to proceed with production or publication as appropriate.
8.1. Where artwork or other material is sent to the Client for final approval, the Client shall check it carefully and notify the Agency of any errors or alterations. The Agency will use its reasonable endeavours to effect any changes so notified but the Agency reserves the right to charge extra if any of these alterations go beyond the original Brief. Where notification of errors is either unreasonably delayed in this way or does not occur at all before publication, the Agency will not be liable in respect of any such errors. The Agency will also not be liable in respect of errors which may occur after the handover of artwork where the Client oversees the print and production process. The Agency cannot guarantee that any or all colours will be exactly replicated in the final version as published.
All general artwork, commissioned artwork, illustrations, website design, programming and copy prepared by the Agency and paid for by the Client will be the Client’s property but the Client will not necessarily own the copyright(s) or other Rights in it. For the avoidance of doubt, the Client shall not own the copyright in ‘stock’ photographs obtained from news or photographic agencies for particular advertisements or to photographic or film negatives or to any other medium in which this material may be supplied.
9.1. The Agency will keep in its care materials entrusted to the Agency by the Client (the ‘Property’). The Agency will mark or otherwise identify the Property as being the property of the Client and will be responsible for its safekeeping. The Agency will not, however, be obliged to recover typesetting, colour separations, printing plates etc and the like from media and Agencies once the Agency has parted with them.
9.2. The Agency shall not be entitled to destroy Property without the Client’s prior written consent. The Agency shall be entitled to return the Property to the Client by delivery to the Client’s offices by giving the Client 30 days’ written notice that it no longer requires the Property.
Except where the Agency agrees to the contrary, it shall be the sole responsibility of the Client to ensure that the Deliverables comply with all local laws (whether consumer, public or civil), regulations and codes in all countries in which use is intended as stated in the Contract. It shall also be the Client’s responsibility to ensure that the Deliverables carry all disclaimers, warnings and public information which any competent lawyer of the Client in any of the relevant jurisdictions would advise.
10.1. Accordingly the Client agrees to indemnify and hold harmless the Agency and the Agency’s agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including reasonable legal fees) arising from any claim, demand or action alleging that the Deliverables or use of them are contrary to any law, code or regulation in any country.
Notwithstanding the licence described in clause 9 above or any other disposition of the Rights agreed between the parties, the Agency shall have a continuing right to use the Deliverables for the purposes of advertising or otherwise promoting the Agency’s work.
The Agency will, where practicable, endeavour to estimate studio costs and extras such as couriers and other external services to be used in relation to the Deliverables, but this will not always be possible. All expenses related to a production, will be invoiced by the Agency and the Client shall pay such invoices as detailed by the Agency within 30 days from date of invoice.
12.1. Where expenses are likely to be significant, the Agency reserves the right to require the Client to pay the full amount of the expected expense in advance.
12.2. General out-of-pocket expenses incurred in supplying the Deliverables, such as courier charges, travelling and hotel expenses, will be charged by the Agency at cost and the Client shall pay the relevant invoices as detailed by the Agency within 30 days from date of invoice.
12.3. Where extra expenses are incurred, either as a result of alterations to the original Brief or otherwise at the Client’s request, the Client shall pay such expenses by way of settlement of the relevant invoices as detailed by the Agency.
Where the Deliverables includes goods, the delivery of goods and passing of risk shall be regarded as occurring on the day of delivery to the Client. If the Client wishes to collect the goods but is then unable to do so, then the Agency shall be entitled to arrange storage and/or transportation for the goods on the Client’s behalf at the Client’s expense. All charges for such storage, transport and any insurance shall be payable by the Client forthwith on request.
13.1. The Client shall inspect and check the goods immediately on delivery and shall give the Agency notice in writing by fax or post within seven working days after the day of delivery as to any alleged defect together with details of the alleged defect. The Client will permit the Agency to inspect any allegedly defective goods. Failing such notice, the goods shall be deemed to be in accordance with the Contract and the Client shall be deemed to have accepted the goods and to be liable to pay for the goods.
13.2. Where either delivery difficulties or other circumstances necessitate the Agency electronically storing any part of the Deliverables for the Client’s future use, the Agency reserves the right to levy storage charges and charges for retrieval from storage, which the Client shall pay as detailed by the Agency.
14.1. If any Deliverables use any trademarks, trading styles or trade names (‘Marks’) owned by the Client or under its control, it is agreed that the Agency shall have the right to use or allow use of any such Marks for the purpose of fulfilling the Agency’s obligations under the Contract. The Agency shall not gain any rights over such Marks by virtue of such use, but the Agency shall be entitled to use the Marks both during and after the production and supply of the Deliverables to promote and advertise its own work.
14.2. It shall be the Client’s responsibility to ensure that all domain names used in connection with the Deliverables are wherever practicable properly registered and do not infringe any third party rights and that any Marks of the Client or any third party used in the Deliverables, including such Marks as are supplied by the Agency as part of the Brief, are used in a manner which neither undermines the Client’s rights in its Marks nor infringes any third party rights.
Once the Contract is concluded as provided on these terms and conditions, any subsequent cancellation by the Client will result in the Client being liable for the Services Cost incurred to date as if the cancellation had not taken place, excluding such committed third party expenses as the Agency is able to avoid liability for within its existing contractual commitments to Agencies.
Accounts unpaid 30 days after the date of invoice (or 15 days in the case of media bookings) will be considered to be in default. If the Client in default maintains any information or files on the Agency’s web space, the Agency will, at its discretion, remove all such material from its web space. Removal of such material does not relieve the Client of the obligation to pay any outstanding amounts. Clients with accounts in default agree to pay the Agency’s reasonable expenses, including legal fees and costs for collection by third-party agencies in enforcing this Contract.
16.1. The Agency shall remain owner of any and all goods, materials and rights until such time as the Client has paid the Services Cost and all such other monies due under the Contract with the Agency.
The Client’s attention is particularly drawn to this clause. Nothing in these terms and conditions shall exclude or restrict the Agency’s liability for death or personal injury resulting from its negligence, liability for fraudulent misrepresentation or any other liability which cannot be excluded or limited under applicable law. Subject to this:
17.1. The Agency’s total liability to the Client in contract law or in tort or otherwise howsoever arising in relation to this Contract is limited to the Agency’s charges for the Deliverables;
17.2. The Agency shall not be liable in any way in respect of any failure, delay or defect in the supply or use of the Deliverables caused by the supply or specification by the Client of unsuitable material or content or by the reproduction of the Deliverables by a third party; and
17.3. The Agency will not be liable to the Client for economic loss including loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of any description howsoever caused and even if foreseeable by the Agency.
17.4. All warranties, conditions and other terms implied by statute, common law or otherwise are hereby excluded from the Contract to the fullest extent permitted by law.
The Agency acts [in this Contract] as a principal and not as agent for the Client and will enter into all related contracts as principal.
The Agency may sub-contract any or all of its rights or obligations under this Contract and may with the Client’s consent, such consent not to be unreasonably withheld or delayed, assign the benefit and burden of its rights and obligations under this Contract to any other entity.
Neither party shall divulge any confidential information which is supplied to it about the other party in the course of this Contract or any pre-Contract discussions, other than information forming part of the public domain otherwise than through a breach of this clause or any other obligation of confidence.
Either party may by notice in writing to the other terminate this Contract forthwith upon the happening of one or more of the following events:
21.1. If the other shall fail to make any payment due under this Contract in accordance with the invoice requirements after the due date, or to remedy any other breach of the Contract within 30 days after being required to do so in writing; or
21.2. If the other shall be involved in any of the situations described below:
(a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party];
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) the other party (being an individual) is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within  days;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(g) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
21.3. Without limiting its other rights or remedies, the Agency shall have the right to suspend provision of the services under the Contract or any other contract between the Client and the Agency if the Client becomes subject to any of the events listed in clause 21.2 (a)-(i) or the Agency reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
On termination of the Contract for any reason:
22.1. the Client shall immediately pay to the Agency all of the Agency’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Agency shall submit an invoice, which shall be payable by the Client immediately on receipt;
22.2. the Client shall return all of the Agency Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Agency may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safekeeping and will not use them for any purpose not connected with this Contract;
22.3. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry;
22.4. clauses which expressly or by implication have effect after termination shall continue in full force and effect;
22.5. Such termination shall be without prejudice to the parties’ accrued rights and liabilities, in particular, the Agency’s entitlement to payment for work done.
The Agency is not liable for any breach of this Contract caused by matters beyond its reasonable control including acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving the Agency’s employees), weather of exceptional severity, unavoidable hardware or software failures, pandemics, or acts of local or central government or other authorities.
This Contract is the entire Contract between the parties on the subject matter contained herein and supersedes all representations, communications and prior Contracts between the parties in that regard.
24.1. Each party acknowledges that it has entered into this Contract in reliance only on the representations, warranties, promises and terms contained or expressly referred to in this Contract and, save as expressly set out in these terms and conditions, neither party shall have any liability in respect of any other representation, warranty or promise unless it was made fraudulently.
Unless expressly provided in this Contract, no term of this Contract is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
Any written notice required by this Contract should be sent to the business address of the intended recipient shown overleaf. Notices can be sent by hand, by post or by fax.
This Contract and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with English law and each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of England and Wales.