1. “Orqa Design” means Orqa Design & Marketing Specialists Ltd “Services” means the goods and/or services to be supplied by Orqa Design to the Client in accordance with Orqa Design’s quotation or at the Client’s order and includes goods and/or services which, in Orqa Design’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Materials provided by the Client or any other cause attributable to the Client; “Materials” means any documents, materials, data, photography or information supplied by one party to the other; and “the Client” means the person who accepts Orqa Design’s quotation for the supply of Services or whose order for Services is accepted by Orqa Design and where the Client comprises two or more persons their liability to Orqa Design shall be joint and several.
2. These terms and conditions apply to all contracts between Orqa Design and the Client for the provision of services to the exclusion of any terms and conditions specified by the Client.
3. All charges quoted to the Client for the provision of the Services are inclusive of any Value Added Tax for which the Client shall be liable at the rate applicable from time to time. Orqa Design’s quotations are valid for a period of 30 days from the date of the quotation and the Client shall pay Orqa Design’s charges (over and above the sums quoted) for additions to or changes in the Services, all corrections and delivery.
4. Orqa Design shall be entitled to invoice the Client (both on an interim and on a final basis) at any time following the provision of Services (unless otherwise agreed with the Client) and the Client shall pay the amount of Orqa Design’s invoices (together with any applicable Value Added Tax and without any set-off or other deduction) within 30 days of the date of Orqa Design’s invoice.
5. If payment is not made on the due date Orqa Design shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgement) at the rate of 2% per month from the due date until the outstanding amount is paid in full.
6. The copyright in any Materials provided by the Client to Orqa Design shall belong to the Client while the copyright in any Materials provided by Orqa Design (including paid and unpaid pitches) shall, unless otherwise agreed in writing between the Client and Orqa Design, belong to Orqa Design, subject only to the right of the Client to use Materials provided by Orqa Design for the proper exploitation by the Client of the Services.
7. Any Materials provided by the Client which are so designated by the Client and any Materials provided by Orqa Design which are so designated by Orqa Design shall be kept confidential by the party receiving them unless the Materials concerned are already in or enter the public domain otherwise than by that party’s act or omission.
8. The Client warrants that any Materials provided by the Client and their use by Orqa Design for the purpose of providing Services will not infringe the copyright or other rights of any third party, and the Client shall indemnify Orqa Design against any loss, damages, costs, expenses or other claims arising from any such infringement.
9. Upon completion of the Services and payment in full by the Client for such work (and settlement by the Client of all other sums due from the Client to Orqa Design) Orqa Design shall at the written request of the Client assign to the Client its copyright in any Materials created for the Client as part of the Services, subject to the conditions of clause 14 of these terms and conditions.
10. Orqa Design warrants that its work shall be original and will not knowingly infringe third party rights. Any preliminary conceptual design work produced is for conceptual use only and therefore not intended to be used as final artwork. Orqa Design cannot be held responsible for further use of conceptual designs without authorisation.
11. For the avoidance of doubt, all concepts, ideas or other preliminary work produced by Orqa Design in contemplation of but prior to the Client’s order for Services shall be deemed to form part of the Services and shall be subject to the same constraints as to intellectual property rights and confidentiality as the
12. Unless Orqa Design expressly agrees otherwise, it shall not be under any obligation to make any search or enquiry with regard to third party rights such as trademarks, registered designs or market searches.
13. Unless expressly requested by the client in writing, it is standard procedure for illustrators, photographers, image libraries and model agencies to retain ownership of the original illustration or photograph, although this does not restrict the Client's use of any illustration or photograph within the negotiated usage rights.
14. Orqa Design warrants to the Client that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the specification for the Services and at the intervals and within the times agreed between Orqa Design and the Client. Where Orqa Design supplies in connection with the Services any goods (including Materials) supplied by a third party, Orqa Design does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall where possible assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to Orqa Design.
15. Orqa Design shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Materials or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
16. Except in respect of death or personal injury caused by Orqa Design’s negligence, or as expressly provided in these conditions Orqa Design shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the
express terms of the contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence Orqa Design, its servants or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Client, and the entire liability of Orqa Design under or in connection with the contract shall not exceed the amount of Orqa Design’s charges for the provision of the Services, except as expressly provided in these conditions.
17. Orqa Design shall not be liable to the Client or be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of Orqa Design’s obligations in relation to the Services, if the delay or failure was due to any cause beyond Orqa Design’s reasonable control.
18. Orqa Design shall be entitled (unless otherwise agreed) to sub-contract the provision of the Services or any part of them, and to receive and to retain for its own benefit any commission earned through the introduction of the Client’s business to third parties.
19. Orqa Design shall not be liable to the Client for the non-appearance of advertising placed by Orqa Design for the Client, or for any failure to comply with the Client’s instructions in relation to the formal content of such advertising, where such non-appearance or failure was beyond Orqa Design’s reasonable control, and Orqa Design may charge to the Client all costs incurred and not recoverable by Orqa Design in relation to such advertising.
20. The Standard Conditions of Contract of the British Printing Industries Federation shall apply to any contract for the design and/or production of printed material for the Client in so far as such conditions are not inconsistent with Orqa Design’s own terms and conditions (which shall prevail).
21. Either party may (without limiting any other remedy) at any time terminate the contract by giving written notice to the other if the other commits any breach of these terms and conditions and, if capable of remedy, fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors, or has a receiver or administrator appointed.
22. Orqa Design cannot guarantee that emails sent to it or it's agents or representatives will be received and all critical communication should be sent or confirmed by personal delivery, recorded post or fax.
23. These terms and conditions (together with the terms, if any, set out in any specification for the Services agreed between the parties) constitute the entire agreement between Orqa Design and the Client and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
24. English law shall apply to the contract, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.