1.1 In these Conditions, unless the context otherwise permits, the following expressions shall have the following meanings:
1.2 'Galmas' means Galmas Limited (registered in England number 05067763) whose registered office is at 11 Thames Reach, 80 Rainville Road, London W6 9HS. Galmas also trades as Gallé Design Studio.
1.3 'the Client' means the person, firm or company named on the Cost Estimate for whom Galmas has agreed to provide the Services in accordance with these Conditions;
1.4 'Document' includes, in addition to a document in writing, a map, plan, artwork, proofs, copy, design, drawing, sketch, picture, photograph or other image or any other record of any information in any form;
1.5 'these Conditions' means the standard terms and conditions of Galmas set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between Galmas and the Client;
1.6 'the Contract' means the contract for the provision of the Services;
1.7 'Cost Estimate' means Galmas's written fee and/or cost proposal or estimate for the provision of the Services as agreed by the Client;
1.8 'Input Material' means any Documents or other materials, and any data or other information provided by the Client relating to the Services;
1.9 'Output Material' means any Documents or other materials, and any data or other information provided by Galmas relating to the Services;
1.10 'the Services' means the services to be provided by Galmas to the Client as described in the Cost Estimate;
1.11 The headings in these Conditions are for convenience only and shall not affect their interpretation.
Any reference to a paragraph is a reference to a paragraph of these Conditions.
2. BASIS OF THE PROVISION OF THE SERVICES
2.1 Galmas shall provide the Services and the Client shall accept the Services in accordance with the Cost Estimate subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions proposed by the Client.
2.2 No variation to these Conditions shall be binding unless agreed in writing between an authorised representative of Galmas and of the Client.
2.3 If Galmas commences the provision of the Services at the request of the Client then the Client shall be deemed to have accepted these Conditions and the Cost Estimate.
3.1 Galmas's fees for the provision of the Services shall be as set out in the Cost Estimate. If the Cost Estimate indicates that the fees or any part of them are an estimate or are for budget purposes or are qualified by any similar expression, such fees will be subject to amendment at a rate or on a basis set outlining the Cost Estimate according to the nature and quantity of the particular Services the fee for which was not a firm amount.
3.2 Galmas shall be entitled to make an additional charge for any work required in advance of an agreed timetable or for any agreed shortening of the period of the Contract on the basis set out in the Cost Estimate.
3.3 Galmas shall be entitled to make an additional charge for any work carried out beyond an agreed timetable on the basis set out in the Cost Estimate (unless such additional work arises out of Galmas's sole responsibility).
3.4 Galmas shall be entitled to make an additional charge for extra work entailed in making alterations to an approved design, necessitated by changes in the Client's instructions or any other cause beyond the control of Galmas. Where the Client requests a substantial change in the Services at any stage Galmas reserves the right to terminate the Contract (but without being under any obligation to do so) and submit to the Client a new Cost Estimate for a fresh commission. In those circumstances the Client shall pay Galmas its fees, costs and expenses incurred to date.
3.5 If Galmas has provided a design in accordance with the Client's brief as recorded in Cost Estimate but the Client decides not to proceed with the design whether in the form submitted by Galmas or in an amended form the Client shall pay all of Galmas's fees, costs and expenses incurred up to the date when the Client notifies Galmas that it does not wish to proceed.
3.6 Any service which Galmas agrees to provide in addition to those recorded in the Cost Estimate shall be the subject of a separate fee and cost proposal.
3.7 If the Client shall request Galmas to store any materials on its behalf (including without limitation exhibition stands) Galmas shall be entitled to charge the Client reasonable storage charges. Any such materials shall be stored at the Client's risk.
3.8 Galmas's fees, costs and expenses are exclusive of any applicable Value Added Tax, which the Client will be additionally entitled to pay to Galmas.
In addition to fees, Galmas shall be reimbursed at cost for all reasonable out of pocket expenses actually and properly incurred in the provision of the Services. Such expenses will include without limitation hotel, subsistence and travelling expenses, mileage allowances for cars at recognised rates, long distance telephone calls, facsimile charges and photocopying charges.
Costs incurred by Galmas for such items (but without limitation) as prints and other reproductions of drawings, typesetting and the provision of dummies and deliveries by courier furnished at the Client's request or with the Client's approval shall be charged separately and will be subject to a reasonable mark-up to cover the handling charge.
6. TERMS OF PAYMENT
6.1 The terms of payment are set out in the Cost Estimate. If nothing is set outlining the Cost Estimate Galmas shall be entitled to submit accounts at the end of each calendar month for work carried out during that month. All invoices of Galmas shall be paid by the Client within 30 days of the invoice date.
6.2 The time of payment of Galmas's invoices shall be the essence of the Contract. If the Client fails to make a payment on the due date then without prejudice to any other right or remedy available to Galmas, Galmas shall be entitled to:
6.2.1 Cancel the Contract or suspend the provision of the Services;
6.2.2 Charge the Client an Administration fee on unpaid invoices. The administration fee is fixed at £30 per month until payment in full is made and it is calculated on a monthy basis.
6.2.3 Enter the premises of the Client and recover all artwork or any other physical material produced by Galmas (including but without limitation sketches, drawings or dummies).
Where practicable, Galmas shall submit to the Client for approval all artwork, dummies, print proofs and if the Client does not approve any of the same within such reasonable periods specified by Galmas the Client shall be deemed to have approved the same.
Galmas undertakes not to disclose any confidential information obtained from the Client concerning the business methods, know-how and affairs of the Client save to the extent only as is required by Galmas for the proper performance of the Services. This obligation shall not apply to any such information which by law Galmas is obliged to disclose or which comes into the public domain (other than as a result of a breach of this obligation by Galmas).
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The property and any copyright or other intellectual property rights of whatever nature in:
9.1.1 Any Input Material shall belong to the Client (the risk in which shall remain with the Client);
9.1.2 Any Output Material shall, unless otherwise agreed in writing between the Client and Galmas, belong to Galmas, but the Client shall be entitled to use the Output Material solely for the purpose of utilising the Services by way of anon-exclusive non-transferable licence, subject to payment in full of all sums payable under the Contract.
9.2 The Output Material shall not be used for any purpose other than that for which it was commissioned as set out in the Cost Estimate without the prior written approval of Galmas.
9.3 In no circumstances may any work in rough or uncompleted form be used or published as finished work without the prior written approval of Galmas.
9.4 Galmas shall at all times be entitled to use for the purposes of promotion any of the commissioned work or any description or illustration of the commissioned work and shall be entitled to have access to premises where such commissioned work appears for the purposes of taking photographs.
9.5 No modifications or alterations to the Output Material or any other work created by Galmas may be made by the Client without the written consent of Galmas. Any agreed modifications or alterations shall only be carried out by or under the supervision of Galmas and shall be paid for at a rate to be agreed with Galmas in advance. In the event of any reprints being obtained by the Client these shall not differ in any way from the originals supplied without the written consent of Galmas.
9.6 Galmas asserts its rights to be identified as author of any design work which has been created for the Client as part of the Services and any publication of that work or reproduction thereof on any finished product shall bear a clear and distinctive credit to Galmas as approved by Galmas.
9.7 The Client will indemnify Galmas against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use by Galmas of any Input Material infringes the intellectual property rights (of whatever nature) of any third party. Subject to the foregoing, Galmas shall likewise indemnify the Client against all costs, claims, demands, expenses and liabilities of whatever nature arising out of or in connection with any claim that the Output Material provided by Galmas infringes the intellectual property rights (of whatever nature) of any third party.
9.8 The indemnities granted pursuant to this paragraph 9 shall be subject to the indemnifying party being granted immediate and complete control of such claim, the indemnified party not prejudicing the indemnifying party's defence of the claim, the indemnified party giving the indemnifying party all reasonable assistance with such claim (at the expense of the indemnifying party) and, in the case of the indemnity granted by Galmas, to the claim not arising as a result of any alteration or modification to the Output Material which was not made or expressly approved in writing by Galmas.
9.9 In the event of Galmas ceasing as a business, Output material (such as master files) will be put for sale to the Client. The costs shall be determined by Galmas.
10. WARRANTIES AND LIABILITY
10.1 Galmas warrants to the Client that the Services will be provided using reasonable care and skill. Where Galmas supplies in connection with the Services any goods supplied by a third party, Galmas 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 such goods to Galmas.
10.2 Galmas shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, 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.
10.3 Except in respect of death or personal injury caused by Galmas's negligence (in respect of which Galmas's liability shall not be restricted or excluded in any way), or as expressly provided in these Conditions, Galmas 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 or in tort (including negligence), for any loss of profit, business, data or goodwill or any indirect, special or consequential loss, damage, costs, expenses of other claims (whether caused by the negligence of Galmas, its servants or agents or otherwise) which arise out of or in connection with the provision of the Services(including any delay in providing or failure to provide the Services) or their use by the Client, and the entire liability of Galmas under or in connection with the Contract shall not exceed the amount of Galmas's fees for the provision of the Services, except as expressly provided in these Conditions.
10.4 Galmas shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of Galmas's obligations in relation to the Services if the delay or failure was due to any cause beyond Galmas's reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond Galmas's reasonable control:
10.4.1 Incomplete or lack of Input Material provided by Client (photography, graphics, videos, copy text, data).
10.4.2 Difficulties of Galmas's suppliers in obtaining raw materials, labour, fuel, parts or machinery.
10.4.3 act of God, explosion, flood, tempest, fire or accident;
10.4.4 war or threat of war, sabotage, terrorism, insurrection, civil disturbance or requisition;
10.4.5 acts, restrictions, regulations, byelaws, or prohibitions or measures of any kind on the part of any governmental or parliamentary or local authority;
10.4.6 import or export regulations or embargoes;
10.4.7 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Galmas or a third party);
11. INSOLVENCY OF CLIENT
11.1 This paragraph applies if:
11.1.1 the Client makes any voluntary arrangements with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation otherwise than for the purposes of a bona fide amalgamation or reconstruction;
11.1.2 an encumbrance takes possession or a receiver is appointed of any of the property or assets of the Client; or
11.1.3 the Client ceases or threatens to cease carrying on business; or
11.1.4 Galmas reasonably apprehends that any of the events mentioned above (or any analogous event in any jurisdiction) is about to occur in relation to the Client and notifies the Client accordingly.
12.1 Any notice or approval required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
12.2 No waiver by Galmas of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 If any provision of these Conditions is held by any authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.4 Nothing in the Contract shall create or be deemed to create a partnership or the relationship of principal and agent between the parties.
12.5 The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract.
12.6 The Contract shall be governed by and construed in accordance with the laws of England and Galmas and the Client submit to the non-exclusive jurisdiction of the English Courts for the purposes of enforcing any claim under the Contract.