In these terms and conditions “the Client” means the client with whom Pelican Media Ltd is contracting and “the Services” means the production and provision of computer generated images more particularly described in the quotation and “the Contract” means the contract of the supply and performance of the Services subject to these terms and conditions.
1. Formation and Incorporation
- The Contract will be on these terms and conditions to the exclusion of all other terms and conditions and any variation to these terms and conditions shall have no effect unless expressly agreed in writing by Pelican Media Ltd.
- Any error whatsoever contained within any quotation, invoice or other document provided by Pelican Media Ltd shall be subject to correction without any liability on the part of Pelican Media Ltd.
- The Client’s acceptance of the quotation (in writing, for example via email, or in the form of an order and/or payment of the deposit referred to in condition 5.1 shall constitute acceptance of these terms and conditions. Any quotation given is valid for a period of 30 days provided Pelican Media Ltd has not previously withdrawn it.
- Pelican Media Ltd may at any time without notifying the Client make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements or which do not materially affect the nature or quality of the Services.
- The Client acknowledges that Pelican Media Ltd shall rely upon all information, materials, documents, drawings, advice and recommendations by the Client.
- The Client acknowledges and warrants that: –
- the Client will retain duplicate copies of all materials supplied to Pelican Media Ltd.
- the Client is either the sole absolute and unencumbered legal and beneficial owner of all rights of copyright and all other rights whatsoever in and in respect of the materials supplied in Clause 1.5 or has license to such materials which is assigned to Pelican Media Ltd in respect of such materials.
- The Client undertakes to indemnify Pelican Media Ltd and keep Pelican Media Ltd at all times fully indemnified from and against all actions proceeding claims demands costs (including without prejudice to the generality of this provision Pelican Media Ltd legal costs on a solicitor and own client basis) awards damages however arising directly or indirectly as a result of any breach or non performance by the client of any of the Client’s obligations undertakings at warranties in this clause 1.5.
2. Supply of the Service
- Pelican Media Ltd will supply the Services, as set out in the quotation, to the Client either by e-mail, by post (subject to an additional charge) or via an internet download as shall be determined by Pelican Media Ltd.
- If printed copies of the computer generated images or copies of DVD’s or CD Rom’s are required by the Client this will be at an additional cost to the Client including postage and packaging.
- Subject to the other provisions of these terms and conditions Pelican Media Ltd will not be liable for any loss (including loss of profits) costs, damages, charges or expenses caused directly or indirectly by any delay in the supply of the Services (even if caused by Pelican Media Ltd negligence) nor will any delay entitle the Client to terminate or rescind the Contract.
3. Intellectual Property
- The property and any copyright or other intellectual property right in all material produced by Pelican Media Ltd in performance of the Services belong to Pelican Media Ltd, but the Client shall be entitled to use the material supplied under this Contract solely for the purposes editorial use, commercial use (e.g. on commercial products) and use for promotional purposes by way of a non-exclusive licence, subject to payment in full of all sums payable under this Contract.
- The Client acknowledges that all material supplied by Pelican Media Ltd must not be reproduced or distributed by the Client to any third party who is deemed a competitor of Pelican Media Ltd, without Pelican Media Ltd express written consent and on such terms as Pelican Media Ltd shall in its absolute discretion determine.
- The price for the Services shall be the amount stated by Pelican Media Ltd in the quotation.
- Should the Client wish to change or revise the specification for the Services all amendments shall be costed for on a new quotation.
- The price for the Services is exclusive of any Value Added Tax or any other applicable tax, which the Client shall pay in addition when it is due to pay for the Services.
- Where the Client decides to use purchase orders they will be deemed divisible. Each delivery made thereunder:
- shall be deemed to arise from a separate contract, and
- shall be invoiced separately and any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for therein without reference to and notwithstanding any defect or default in the delivery of any other instalment or of any other instalment under any other contract.
- A non-refundable deposit of 30% of the quotation figure shall become due immediately upon the acceptance of the quotation on all quotes in excess of five thousand pounds, unless specifically agreed in writing.
- The Client will have a period of 5 days to approve the material supplied by Pelican Media Ltd as a result of the Services.
- The balance of the quotation figure shall become due upon the approval of the Services by the Client or the expiry of the approval period referred to on condition 5.2 whichever is the sooner. Pelican Media Ltd invoice for the Services shall be paid by the Client (together with any applicable Value Added Tax and without any set-off of other deductions) within 30 days of the date of Pelican Media Ltd invoice.
- The Client shall pay any additional sums which are agreed between Pelican Media Ltd and the Client for the provision of the Services or which, at Pelican Media Ltd’s sole discretion, are required as a result of the client’s instructions, or lack of instructions or any other cause attributable to the Client.
- No payment shall be deemed to have been received until Pelican Media Ltd has received cleared funds.
- All payments payable to Pelican Media Ltd under this Contract shall become due immediately upon termination of the Contract.
- If the Client fails to make any payment under this Contract on the due date then (without prejudice to its other rights and remedies) Pelican Media Ltd shall be entitled to charge the Client a £100 administration fee plus interest on the amount unpaid at the rate prescribed from time to time by the Late Payment of Commercial Debts (Interest) Act 1988 or any successive Act of Parliament from the due date until the outstanding amount is paid in full, plus any costs associated with recovering such payment.
7. Limitation of Liability
- Any claim by the Client that is based on any defect in the quality of the Services shall be notified to Pelican Media Ltd within 7 days from the date of completion of the Service. If the Client does not notify Pelican Media Ltd accordingly, the Client shall not be entitled to reject the Service and Pelican Media Ltd shall have no liability for such defect, and the Client shall be bound to pay the price as if the Service had been completed in accordance with the Contract.
- Pelican Media Ltd shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from: –
- any instructions supplied by the Client which are incomplete, inaccurate or illegible or due to any other default of the Client;
- any failure by the Client to adhere to the instructions or advice given to the client by Pelican Media Ltd;
- any negligence on the part of any third party involved in performing the Services.
- Subject as expressly provided in these terms and conditions, and except where the Services are supplied to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law and the entire liability of Pelican Media Ltd under this Contract shall not exceed the amount stated in the quotation for the provision of the Services.
- Pelican Media Ltd shall not be liable to the Client in any manner or deemed to be in breach of this Contract because of delay in performing or any failure to perform any of Pelican Media Ltd obligations under this Contract if the delay or failure was due to any cause beyond Pelican Media Ltd reasonable control including (but not limited to) the corruption, delay or non-delivery of any data produced as a result of the Services and delivered to the Client by electronic communication.
- No Service which has been accepted by the client may be cancelled by the Client except with the agreement in writing of Pelican Media Ltd and on terms that the Client shall indemnify Pelican Media Ltd in full against all loss (including loss of profit), costs (including the cost of all labour and materials used or ordered), damages, charges and expenses incurred as a result of cancellation.
- Pelican Media Ltd shall be entitled without prejudice to any other rights and remedies either to terminate the whole or part of any or every Contract between itself and the Client or to suspend any further provision of Services under any or every such Contract in any of the following events: –
- if any debt is due and payable by the Client to Pelican Media Ltd but is unpaid;
- the Client ceases, or threatens to cease, to carry on in business;
- the Client becomes insolvent or being a body corporate has passed a resolution or voluntary winding-up or has suffered an order of the Court for its winding-up to be made or has had a Receiver or Examiner appointed or being an individual or partnership has suspended payment of his or their debts in whole or in part or has proposed to enter into any composition or arrangement with his or their creditors or has had a receiving order in bankruptcy made against him.
- Failure by Pelican Media Ltd to enforce or partially enforce any provisions of this Contract will not be construed to the waiver of any of its rights under this Contract.
- Pelican Media Ltd may assign license or sub-contract all or any part of its rights or obligations under this Contract without the Client’s consent.
- If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall not be affected.
- The formation, construction, performance, validity and all aspects of this Contract are governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.