CLIENT TERMS & CONDITIONS
1. INTERPRETATION
1.1 In this Order the following words and expressions shall, unless the context otherwise requires, have the following meanings:
2. SPECIFICATION
2.1 Imagine shall use its reasonable care and skill in the production and supply to you of the Deliverables in accordance with any written specification provided by you and any other requirements detailed overleaf.
2.2 You warrant that the specification and any other information provided by you in relation to the Deliverables is accurate in all respects. As the price for the Deliverables is agreed on the basis of the specification provided by you any changes to that specification after acceptance of this Order by Imagine, whether resulting from alterations by you, delay in the provision of materials, information, instructions or authorisations to Imagine, or from any other circumstances beyond the control of Imagine may be subject to extra charges.
2.3 It shall be your sole responsibility 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 this Order. It shall also be your responsibility to ensure that the Deliverables carry all disclaimers, warnings and public information which could reasonably be required. Accordingly, you hereby agree to indemnify and hold Imagine and any of its employees harmless from any liability, costs, losses, damages or expenses of any kind (including reasonable legal fees) arising from any claim that the Deliverables or the use of them are contrary to any law, code or regulation. Imagine will not be liable for any changes to the specification of the Deliverables if it reasonably suspects that the specification provided by you is contrary to any law, code or regulation or is contrary to public health and/or safety interests.
2.4 Written approval by you of any final copy, layout, script, designs and the like will constitute authority to Imagine to proceed with production or publication as appropriate. Where material is sent to you for final approval you shall check it carefully and notify Imagine in writing as to any errors or alterations. Imagine will use all reasonable endeavours to effect any changes so notified, but reserves the right to charge extra if any of those alterations go beyond the original specification provided by you. Imagine will not be liable for errors which are not notified in accordance with the foregoing or where you do not wish to pay for proofs or oversee the production process.
2.5 Imagine reserves the right to alter, change or cancel any stunt, campaign or associated activity at any time without prior consent in the event of adverse weather conditions or hazards which may pose a risk to public or employee safety.
3. DELIVERY
3.1 If the Deliverables include any goods, then delivery of such goods shall be regarded as occurring when either two business days have elapsed following the day you have been informed that the goods are awaiting collection or, in cases where the Deliverables include delivery of the goods to you, on the day of delivery.
3.2 You shall inspect and check any goods supplied to you immediately on delivery and shall give Imagine notice in writing within three business days after the date of delivery as to any alleged defect. Failing such notice the goods shall be deemed to be in accordance with this Order and you shall be deemed to have accepted the goods and be liable to pay for them.
3.3 Risk in the Deliverables shall pass to you upon the commencement of their supply or transportation to you.
4. PRICE AND PAYMENT
4.1 Unless stated otherwise overleaf, you will normally make payment of 50% of the total price specified overleaf on signature of this Order by you. The balance of the price will normally be paid 7 days following the issue by Imagine of an invoice. Invoices will be issued on delivery of the Deliverables, or on each the agreed timescales detailed overleaf, as appropriate.
4.2 Imagine reserves the right to charge interest on all invoices presented to you which are not paid by the relevant due date at the rate of 5% per annum above the base rate from time to time of the European Central Bank. Such interest shall accrue on a daily basis from the date on which payment became overdue up to the date on which Imagine receives the outstanding amount together with all accrued interest.
5. RESTRICTIONS
5.1 You hereby undertake to Imagine that you will not, whether alone or jointly with another and whether directly or indirectly, for a period of 12 months from the date of signature of this Order:
5.3 You acknowledge that each of the restrictions contained in clause 5.1 constitutes an entirely separate and independent restriction and that the duration, extent and application of each of the restrictions are no greater than is necessary for the protection of goodwill and confidential information of Imagine. You further acknowledge that if it should be found by any competent court that any of such restrictions is void for any reason and if by altering or deleting part of the wording or substituting shorter periods of time or a different geographical limit or more restricted ranges of activities it would not be void for any reason, then there shall be made such alteration or deletion or be substituted such next less extensive periods and/or limits and/or activities as shall render the relevant restriction valid and enforceable.
6. RIGHTS
6.1 Subject to the following provisions and to the rights of any third party, ownership of the Rights in the Deliverables shall remain vested in Imagine unless any assignation or other disposition of the Rights is agreed between the parties.
6.2 You shall have a royalty free licence, coming into effect on payment of the price for the Deliverables, to use the Deliverables for the purposes, in the territories and in respect of the products or services defined overleaf and in the specification provided by you. Such licence shall be automatically terminated if you commit any act of bankruptcy or compound with your creditors or a petition or receiving order in bankruptcy is presented or made against you or a petition for an administration order is presented in relation to you or a resolution or a petition to wind you up is presented otherwise than for a solvent reconstruction or amalgamation or a receiver or administrative receiver is appointed or if you cease or threaten to cease to carry on business.
6.3 Should you wish to use the Deliverables or any other material presented to you by Imagine beyond the parameters specified overleaf or in the specification provided by you, a separate agreement must be concluded between you and Imagine.
6.4 In so far as use of the Deliverables involves use of third party material Imagine shall secure such licence as is necessary to allow the required use of the same and shall inform you as soon as reasonably practicable as to any continuing liability to those third parties, for example in relation to royalties, licence fees or performance fees.
6.5 Notwithstanding any licence or other disposition of the Rights described above or otherwise agreed between the parties, Imagine shall have a continuing right to use the Deliverables for the purposes of advertising or otherwise promoting Imagine's work. Imaine shall also have the right to request that you mark all design work supplied by Imagine with the phrase .Design by Imagine Marketing Promotions Limited. (or such other appropriate phrase as may be agreed) in a suitable place.
6.6 If any Deliverables use any trade marks, trading styles or trade names owned by you or under your control it is agreed that Imagine shall have the right to use or allow the use of such Marks for the purposes of fulfilling Imagine's obligations in terms of this Order and for the purposes detailed at clause 5.5 above. You shall ensure that all Marks are wherever practicable properly registered and that they do not infringe any third party rights.
7. CONFIDENTIALITY
7.1 Neither party shall divulge any confidential information which is supplied to it about the other party in the course of this Order other than information already forming part of the public domain otherwise than through a breach of this clause.
8. INDEMNITY
8.1 Imagine shall not be liable for the following loss or damage howsoever caused and even if foreseeable by Imagine:
8.3 You shall be liable for all fines, penalties, claims, expenses (including without limitation legal costs), actions, proceedings or damages incurred in connection with any stunt, campaign or associated activity carried out by Imagine or its employees on your behalf.
9. TERMINATION
9.1 This Order may be cancelled by Imagine at any time forthwith by notice in writing if:
10. FORCE MAJEURE
10.1 Imagine shall not be liable for any breach of the terms and conditions of this Order caused by matters beyond its reasonable control including, but not limited to war, civil commotion, strikes, fire, explosion or other form of force majeure.
11. ASSIGNMENT & SUB-CONTRACTING
11.1 Imagine may sub-contract any or all of its rights or obligations hereunder and may, with your consent, such consent not to be unreasonably withheld, assign the benefit and burden of its rights and obligations hereunder to any other entity.
12. GENERAL
12.1 No variation of this Order shall be effective unless constituted in writing and signed by both parties.
12.2 Any notice hereunder shall be in writing and may be given by hand or sent by ordinary first class post to the address set forth in this Agreement, or as otherwise advised from time to time. In the case of a notice given by hand it shall be deemed to have been given when served. In the case of a notice served by first class post it shall be deemed to have been given 48 hours after posting and in proving the service of the same it will be sufficient to prove that such a letter was properly stamped, addressed and placed in the post.
12.3 This Order contains the entire agreement between the parties hereto and supersedes all prior oral or written agreements, representations, understandings or arrangements relating to the subject matter hereof.
12.4 No failure or delay on the part of either party hereto to exercise any right or remedy under this Order shall be construed or operated as a waiver thereof nor shall any single or partial exercise of any right or remedy as the case may be. The rights and remedies provided in this Order are cumulative and are not exclusive of any rights or remedies provided by law.
12.5 Nothing in this Order shall operate so as to create or imply an agency, partnership or joint venture of any kind between the Imagine and you.
12.6 In the event that any, or any part of, the terms, conditions or provisions contained in this Order are held to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
13. GOVERNING LAW
13.1 The terms and conditions of this Order shall be interpreted in all respects in accordance with the laws of Ireland and the parties hereby submit to the non-exclusive jurisdiction of the Irish Courts.
1. INTERPRETATION
1.1 In this Order the following words and expressions shall, unless the context otherwise requires, have the following meanings:
- "Imagine" means Imagine Marketing Promotions Limited, a company incorporated under the Irish Companies Act (Company Number: 402365) and having its Registered Office at 13, The Seapoint Building, Clontarf. Dublin 3, Ireland;
- "Conditions" means the terms and conditions for the purchase of the Deliverables which are set out in this Order;
- "Deliverables" means any services provided or goods or materials, including without limitation, printed material, graphics, drawwork, photographs or negatives or any other work or material prepared or created pursuant to this Order;
- "Order" means this Purchase Order and the terms and conditions contained herein;
- "Rights" means all present and future copyright, design right, database right and other intellectual property rights throughout the world for the whole term thereof including all extensions and renewals and the right to register any trade mark, patents and design rights in any part of the world;
- "you" means the person or body appearing against the word Client on the front of this Order.
2. SPECIFICATION
2.1 Imagine shall use its reasonable care and skill in the production and supply to you of the Deliverables in accordance with any written specification provided by you and any other requirements detailed overleaf.
2.2 You warrant that the specification and any other information provided by you in relation to the Deliverables is accurate in all respects. As the price for the Deliverables is agreed on the basis of the specification provided by you any changes to that specification after acceptance of this Order by Imagine, whether resulting from alterations by you, delay in the provision of materials, information, instructions or authorisations to Imagine, or from any other circumstances beyond the control of Imagine may be subject to extra charges.
2.3 It shall be your sole responsibility 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 this Order. It shall also be your responsibility to ensure that the Deliverables carry all disclaimers, warnings and public information which could reasonably be required. Accordingly, you hereby agree to indemnify and hold Imagine and any of its employees harmless from any liability, costs, losses, damages or expenses of any kind (including reasonable legal fees) arising from any claim that the Deliverables or the use of them are contrary to any law, code or regulation. Imagine will not be liable for any changes to the specification of the Deliverables if it reasonably suspects that the specification provided by you is contrary to any law, code or regulation or is contrary to public health and/or safety interests.
2.4 Written approval by you of any final copy, layout, script, designs and the like will constitute authority to Imagine to proceed with production or publication as appropriate. Where material is sent to you for final approval you shall check it carefully and notify Imagine in writing as to any errors or alterations. Imagine will use all reasonable endeavours to effect any changes so notified, but reserves the right to charge extra if any of those alterations go beyond the original specification provided by you. Imagine will not be liable for errors which are not notified in accordance with the foregoing or where you do not wish to pay for proofs or oversee the production process.
2.5 Imagine reserves the right to alter, change or cancel any stunt, campaign or associated activity at any time without prior consent in the event of adverse weather conditions or hazards which may pose a risk to public or employee safety.
3. DELIVERY
3.1 If the Deliverables include any goods, then delivery of such goods shall be regarded as occurring when either two business days have elapsed following the day you have been informed that the goods are awaiting collection or, in cases where the Deliverables include delivery of the goods to you, on the day of delivery.
3.2 You shall inspect and check any goods supplied to you immediately on delivery and shall give Imagine notice in writing within three business days after the date of delivery as to any alleged defect. Failing such notice the goods shall be deemed to be in accordance with this Order and you shall be deemed to have accepted the goods and be liable to pay for them.
3.3 Risk in the Deliverables shall pass to you upon the commencement of their supply or transportation to you.
4. PRICE AND PAYMENT
4.1 Unless stated otherwise overleaf, you will normally make payment of 50% of the total price specified overleaf on signature of this Order by you. The balance of the price will normally be paid 7 days following the issue by Imagine of an invoice. Invoices will be issued on delivery of the Deliverables, or on each the agreed timescales detailed overleaf, as appropriate.
4.2 Imagine reserves the right to charge interest on all invoices presented to you which are not paid by the relevant due date at the rate of 5% per annum above the base rate from time to time of the European Central Bank. Such interest shall accrue on a daily basis from the date on which payment became overdue up to the date on which Imagine receives the outstanding amount together with all accrued interest.
5. RESTRICTIONS
5.1 You hereby undertake to Imagine that you will not, whether alone or jointly with another and whether directly or indirectly, for a period of 12 months from the date of signature of this Order:
5.1.1 Seek to contract with or engage any person who has been contracted with or been engaged to manufacture, assemble, supply or deliver products or goods, materials or services to Imagine in relation to the Deliverables, without the prior written consent of Imagine;5.2 Breach of the undertakings contained in clause 5.1 will result in a fee being payable by you to Imagine in accordance with Imagine's scale of fees, a copy of which can be exhibited on request.
5.1.2 solicit or endeavour to entice away, offer employment to or offer any contract for services to any person who was an employee of Imagine at the date of this Order, without the prior written consent of Imagine.
5.3 You acknowledge that each of the restrictions contained in clause 5.1 constitutes an entirely separate and independent restriction and that the duration, extent and application of each of the restrictions are no greater than is necessary for the protection of goodwill and confidential information of Imagine. You further acknowledge that if it should be found by any competent court that any of such restrictions is void for any reason and if by altering or deleting part of the wording or substituting shorter periods of time or a different geographical limit or more restricted ranges of activities it would not be void for any reason, then there shall be made such alteration or deletion or be substituted such next less extensive periods and/or limits and/or activities as shall render the relevant restriction valid and enforceable.
6. RIGHTS
6.1 Subject to the following provisions and to the rights of any third party, ownership of the Rights in the Deliverables shall remain vested in Imagine unless any assignation or other disposition of the Rights is agreed between the parties.
6.2 You shall have a royalty free licence, coming into effect on payment of the price for the Deliverables, to use the Deliverables for the purposes, in the territories and in respect of the products or services defined overleaf and in the specification provided by you. Such licence shall be automatically terminated if you commit any act of bankruptcy or compound with your creditors or a petition or receiving order in bankruptcy is presented or made against you or a petition for an administration order is presented in relation to you or a resolution or a petition to wind you up is presented otherwise than for a solvent reconstruction or amalgamation or a receiver or administrative receiver is appointed or if you cease or threaten to cease to carry on business.
6.3 Should you wish to use the Deliverables or any other material presented to you by Imagine beyond the parameters specified overleaf or in the specification provided by you, a separate agreement must be concluded between you and Imagine.
6.4 In so far as use of the Deliverables involves use of third party material Imagine shall secure such licence as is necessary to allow the required use of the same and shall inform you as soon as reasonably practicable as to any continuing liability to those third parties, for example in relation to royalties, licence fees or performance fees.
6.5 Notwithstanding any licence or other disposition of the Rights described above or otherwise agreed between the parties, Imagine shall have a continuing right to use the Deliverables for the purposes of advertising or otherwise promoting Imagine's work. Imaine shall also have the right to request that you mark all design work supplied by Imagine with the phrase .Design by Imagine Marketing Promotions Limited. (or such other appropriate phrase as may be agreed) in a suitable place.
6.6 If any Deliverables use any trade marks, trading styles or trade names owned by you or under your control it is agreed that Imagine shall have the right to use or allow the use of such Marks for the purposes of fulfilling Imagine's obligations in terms of this Order and for the purposes detailed at clause 5.5 above. You shall ensure that all Marks are wherever practicable properly registered and that they do not infringe any third party rights.
7. CONFIDENTIALITY
7.1 Neither party shall divulge any confidential information which is supplied to it about the other party in the course of this Order other than information already forming part of the public domain otherwise than through a breach of this clause.
8. INDEMNITY
8.1 Imagine shall not be liable for the following loss or damage howsoever caused and even if foreseeable by Imagine:
8.1.1 loss arising from any failure, delay or defect in the supply or use of the Deliverables caused by the supply or specification by you of unsuitable material or content or by the reproduction of the Deliverables by a third party;8.2 Imagine accepts liability for its own negligence, but any such liability shall be limited to the price specified for the Deliverables overleaf (except to the extent that it not permissible in law to so restrict such liability).
8.1.2 economic loss, including loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of any description;
8.1.3 loss arising from any claim made against you by any third party; and
8.1.4 loss arising from your failure to fulfil your responsibilities or any matter under your control.
8.3 You shall be liable for all fines, penalties, claims, expenses (including without limitation legal costs), actions, proceedings or damages incurred in connection with any stunt, campaign or associated activity carried out by Imagine or its employees on your behalf.
9. TERMINATION
9.1 This Order may be cancelled by Imagine at any time forthwith by notice in writing if:
9.1.1 you fail to make any payment due hereunder within 7 days after the due date or fail to remedy any other breach within 14 days after being required to do so in writing; or9.2 Any cancellation of this Order by you will result in the full price for the Deliverables specified overleaf becoming due by you immediately, as if such cancellation had not taken place, excluding such third party expenses as Imagine is able to avoid liability for within its existing contractual commitments to suppliers, unless otherwise agreed in writing.
9.1.2 you commit any act of bankruptcy or compound with your creditors or a petition or receiving order in bankruptcy is presented or made against you or a petition for an administration order is presented in relation to you or a resolution or a petition to wind you up is presented otherwise than for a solvent reconstruction or amalgamation or a receiver or administrative receiver is appointed.
10. FORCE MAJEURE
10.1 Imagine shall not be liable for any breach of the terms and conditions of this Order caused by matters beyond its reasonable control including, but not limited to war, civil commotion, strikes, fire, explosion or other form of force majeure.
11. ASSIGNMENT & SUB-CONTRACTING
11.1 Imagine may sub-contract any or all of its rights or obligations hereunder and may, with your consent, such consent not to be unreasonably withheld, assign the benefit and burden of its rights and obligations hereunder to any other entity.
12. GENERAL
12.1 No variation of this Order shall be effective unless constituted in writing and signed by both parties.
12.2 Any notice hereunder shall be in writing and may be given by hand or sent by ordinary first class post to the address set forth in this Agreement, or as otherwise advised from time to time. In the case of a notice given by hand it shall be deemed to have been given when served. In the case of a notice served by first class post it shall be deemed to have been given 48 hours after posting and in proving the service of the same it will be sufficient to prove that such a letter was properly stamped, addressed and placed in the post.
12.3 This Order contains the entire agreement between the parties hereto and supersedes all prior oral or written agreements, representations, understandings or arrangements relating to the subject matter hereof.
12.4 No failure or delay on the part of either party hereto to exercise any right or remedy under this Order shall be construed or operated as a waiver thereof nor shall any single or partial exercise of any right or remedy as the case may be. The rights and remedies provided in this Order are cumulative and are not exclusive of any rights or remedies provided by law.
12.5 Nothing in this Order shall operate so as to create or imply an agency, partnership or joint venture of any kind between the Imagine and you.
12.6 In the event that any, or any part of, the terms, conditions or provisions contained in this Order are held to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
13. GOVERNING LAW
13.1 The terms and conditions of this Order shall be interpreted in all respects in accordance with the laws of Ireland and the parties hereby submit to the non-exclusive jurisdiction of the Irish Courts.
