Terms and Conditions
These terms and conditions together with the principal commercial terms set out above will form a binding agreement (“the Agreement”) between the Client and Alexandra Llewellyn Design Limited in relation to the Commission and supply of the Works.In addition to the principal commercial terms the following definitions shall apply:“Acceptance” means the Client’s acceptance of this Agreement by signing and returning the Agreement to Alexandra Llewellyn Design Limited;“Drafts” means the draft or roughs of the Works; and“Intellectual Property Rights” means copyright, design right, database right, personality rights, image rights, patents and any rights to inventions, know-how, trade and business names, trade secrets, logos and devices, trade and service marks, moral rights and any applications thereof and all rights in confidential information whether such rights are registered or unregistered worldwide.
In consideration of the payment by the Client to Alexandra Llewellyn Design Limited of the Fee in accordance with clause 4 and the other terms of this Agreement, Alexandra Llewellyn Design Limited hereby agrees to design and supply the Works to the Client by the Delivery Date.
The Client shall be responsible for ensuring the accuracy of the details of the Commission (including definition of the Works) and for providing Alexandra Llewellyn Design Limited the necessary information relating to the Works within a sufficient time to enable Alexandra Llewellyn Design Limited to design and deliver the Works by the Delivery Date.The description of the Works shall be as set out in the Commission and accepted by the Client. All drawings, dimensions, measurements and specifications of the Works and samples of the materials used for the Works outlined in the Commission or shown to the Client prior to final design approval shall be approximate only and the Client may not reject the Works if they do not match the Commission exactly.Alexandra Llewellyn Design Limited reserves the right to make changes to the specification of the Works as are required to conform with any applicable safety or other statutory requirements which do not materially affect the quality of the Works. No other change to the specification of the Works will be permissible without Alexandra Llewellyn Design Limited’s consent and Alexandra Llewellyn Design Limited shall be entitled to charge an additional agreed fee for carrying out these changes at any stage of the Commission.
The Fee shall be the fee quoted in the Commission and confirmed in the principal commercial terms. The Fee shall be paid by a bank transfer addressed to ‘Alexandra Llewellyn Design Limited’ or by another payment method authorised by Alexandra Llewellyn Design Limited.Except when agreed otherwise in writing, all priced quoted are exclusive of delivery, insurance, VAT and any special packaging, in respect of which the Client shall be additionally liable to pay Alexandra Llewellyn Design Limited.Alexandra Llewellyn Design Limited shall be entitled to increase the Fee and other charges in the event of unforeseen and uncontrollable increases in the cost of labour, materials or subcontracted services or as a result of any other cause beyond the reasonable control of Alexandra Llewellyn Design Limited or if the Client required additional goods or services or any variations of the Works.The Client will be notified in advance by Alexandra Llewellyn Design Limited where additional Fees are payable and these will be invoiced separately. Disbursements such as carriage, deliveries, insurance, printing costs (where applicable) and other attendant costs such as travel expenses (if any) will be charged to Client at cost. Alexandra Llewellyn Design Limited will invoice the Client the disbursements outlined above and the Client agrees to pay the disbursements within 7 days of receipt of such invoice. Where any further sums are due for those disbursements, they will be invoiced to the Client at the end of the following month. In respect of the payment of disbursements, time is of the essence.
Risk and Title
Risk of damage to or loss of the Works shall pass to the Client at the time of delivery or, if the Client wrongfully fails to take delivery of the Works at the time when Alexandra Llewellyn Design Limited has tendered delivery of the Works then the Client shall insure the Works from the date of delivery until title has passed to the Client.Until the Fee and any other sums whatsoever which are or shall become outstanding from the Client to Alexandra Llewellyn Design Limited shall have been paid or satisfied in full (and if by cheque, then only by clearance), title to the Works remains vested in Alexandra Llewellyn Design Limited (notwithstanding delivery and of the same and the passing of the risk to the Client therein).
The Client shall be entitled to the delivery of one set of Drafts before the delivery of the final Works. Alexandra Llewellyn Design Limited shall endeavour to deliver the Drafts and the Works by the relevant agreed dates but time for delivery shall not be of the essence (unless previously agreed in writing) and Alexandra Llewellyn Design Limited shall not be liable for any reasonable delay in delivery of the Works howsoever caused.Any claim for non-delivery of the Works should be notified to Alexandra Llewellyn Design Limited in writing within five (5) days of the date of Alexandra Llewellyn Design Limited’s invoice. Any claim for delivery of damaged Works should be notified to Alexandra Llewellyn Design Limited within seven (7) days of the Delivery Date.
Cancellation and Rejection
If the Client cancels or otherwise withdraws the Commission after Acceptance for any reason whatsoever, the Client shall pay a cancellation fee of either 50% of the Fee if the Commission is cancelled before or on delivery of the Drafts or 100% of the Fee if the Commission is cancelled after delivery of the Drafts. In the event of cancellation, any licence or other rights granted to the Client under this Agreement shall revert to Alexandra Llewellyn Design Limited.The Client shall be entitled to reject the Works where the Works fail to correspond with the Commission specification in a material way upon the payment to Alexandra Llewellyn Design Limited of a rejection fee of either 50% of the Fee if the Works are rejected before or on delivery of the Drafts or 100% of the Fee if the Works are rejected after delivery of the final design approval. In order to reject the Works the Client must notify Alexandra Llewellyn Design Limited within five days of delivery of the final design approval and if the Client does not then the Client shall not be entitled to reject the Works and Alexandra Llewellyn Design Limited shall have no liability for any defects or failure in the Works. Where the Client rejects the Works, any licence or other rights granted to the Client under this Agreement shall revert to Alexandra Llewellyn Design Limited.Following delivery of the drawings the Client shall have an opportunity to ask for minor amendments to the Works and Alexandra Llewellyn Design Limited shall use all reasonable endeavours to incorporate such amendments to the Works. The Client shall be entitled to ask for amendments a maximum of twice.
The Client agrees and undertakes to:pay the Fee in accordance with clause 4 and the other terms of this Agreement.co-operate with Alexandra Llewellyn Design Limited and keep Alexandra Llewellyn Design Limited informed of the Client’s address and other contact details;inform Alexandra Llewellyn Design Limited forthwith of any complaint or concern by the Client or a third party relating to the Works or any other issue or material relating to this Agreement or Alexandra Llewellyn Design Limited;provide Alexandra Llewellyn Design Limited with such information and documentation as is required to enable Alexandra Llewellyn Design Limited to carry out its obligations hereunder; and follow any instructions relating to the care, upkeep and maintenance of the Works issued by Alexandra Llewellyn Design Limited. Alexandra Llewellyn Design Limited agrees and undertakes to:use reasonable skill and care in ensuring that the quality of the Works is satisfactory and is in accordance with the Commission specification;ensure that Alexandra Llewellyn Design Limited has taken reasonable precautions to confirm that all information provided by Alexandra Llewellyn Design Limited is correct and complete;give the Client reasonable notice of any changes to the Works, the Fees or any other detail set out in the Commission or this Agreement; and act dutifully and in good faith towards the Client.
Alexandra Llewellyn Design Limited warrants that the Works supplied to the Client under this Agreement are Alexandra Llewellyn Design Limited’s own work and if any part is not then it shall have all relevant assignments in place. For the sake of clarity Alexandra Llewellyn Design Limited also warrants that it will be entitled to assign and shall assign to the Client all the Intellectual Property Rights in the Works and that Alexandra Llewellyn Design Limited will not recreate any aspect of the Works or any material colourably similar to the Works or which may compete with the Work for any third party without the Client’s prior written consent.Subject to clause 5.2, Alexandra Llewellyn Design Limited shall assign to the Client (with full title guarantee) all Intellectual Property Rights which arise in the creation of the Works. That includes the exclusive right to do and to authorise others to do any and all acts in relation to the Works throughout the world together with all rights of action in respect of any past or existing infringements of such Intellectual Property Rights like the right to claim damages in respect of any infringing works.Alexandra Llewellyn Design Limited shall ensure that her personnel, agents and sub-contractors engaged by Alexandra Llewellyn Design Limited in the creation, provision and supply of the Works shall, as of the date of creation of the item concerned assign or otherwise transfer to Alexandra Llewellyn Design Limited (who hereby accepts) any and all title to and ownership of all Intellectual Property Rights which they may have in any part of the Works and Deliverables (including the waiving of moral rights) and otherwise grant to Alexandra Llewellyn Design Limited such rights as are required for Alexandra Llewellyn Design Limited's proper performance of its obligations under this Agreement.Alexandra Llewellyn Design Limited retains the right to use images of the Works in any promotional material and literature.The Client shall ensure that any reference to the Works or images of the Works featured in any publications shall be accompanied by a reference to Alexandra Llewellyn of Alexandra Llewellyn Design Limited as the designer and supplier of the Works.
Subject to clause 10.3 below, in no circumstance shall Alexandra Llewellyn Design Limited be liable, in contract, tort or otherwise whatever the cause thereof (i) for any loss of profit, business, contracts, revenue or anticipated savings or (ii) for any special indirect or consequential damage of any nature whatsoever and Alexandra Llewellyn Design Limited’s liability to the Client for direct loss shall be limited only to the Fee or if Alexandra Llewellyn Design Limited fails to deliver the Works for any reason other than any cause beyond its reasonable control or the Client’s fault and Alexandra Llewellyn Design Limited is found to be liable, Alexandra Llewellyn Design Limited’s liability shall be limited to delivering or redelivering the Works.When representations, instructions or advice are given or received orally by Alexandra Llewellyn Design Limited, Alexandra Llewellyn Design Limited shall have no liability to the Client for any misunderstanding or misrepresentation which may arise in relation thereto except where such is fraudulent or reckless.Nothing in this Agreement shall operate or be construed to operate so as to exclude or restrict the liability of Alexandra Llewellyn Design Limited for death or personal injury caused by its negligence.Client agrees that Alexandra Llewellyn Design Limited may use third parties to design, produce and deliver the Works and that Alexandra Llewellyn Design Limited shall have no liability whatsoever in relation thereto subject to Alexandra Llewellyn Design Limited exercising reasonable care in selecting such third parties.Alexandra Llewellyn Design Limited shall not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency beyond Alexandra Llewellyn Design Limited’s reasonable control including and without limitation fire, flood, industrial action, act of terrorism or act of God.Alexandra Llewellyn Design Limited shall not be liable for any variations in or alternations to the Works due to the nature and characteristics of the materials used in the design of the Works.Alexandra Llewellyn Design Limited shall not be liable for any damage or defects to the Works caused by the Client by not following instructions issued by Alexandra Llewellyn Design Limited in relation to the care, upkeep and maintenance of the Works.Alexandra Llewellyn Design Limited shall not be liable for any changes in or alterations to the Works caused by wear and tear, expansion and/or contraction of the materials used due to climate or any other reason or any other change or alteration to the Works due to use of the Works by Client or any third party.
The Client shall indemnify and keep Alexandra Llewellyn Design Limited indemnified against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, and loss of profit and all other reasonable professional costs and expenses) suffered or incurred by Alexandra Llewellyn Design Limited arising out of, or in connection with:any alleged infringement of the Intellectual Property Rights or any other rights of any third party as a result of any material used by Alexandra Llewellyn Design Limited provided by the Client or any material incorporated into the Works by Alexandra Llewellyn Design Limited at the Client’s request whether or not such material was provided by the Client;any allegation of libel, slander, defamation, obscenity or blasphemy as a result of any material used by Alexandra Llewellyn Design Limited provided by the Client or any material incorporated into the Works by Alexandra Llewellyn Design Limited at the Client’s request whether or not such material was provided by the Client; and any alleged breach of any other applicable laws, rules or regulations where Alexandra Llewellyn Design Limited has relied upon information provided by the Client and such breach does not arise from Alexandra Llewellyn Design Limited’s negligence or default.
Alexandra Llewellyn Design Limited and the Client agree to:keep confidential all information (written or oral) concerning the business and affairs of the other party that Alexandra Llewellyn Design Limited or the Client shall have obtained or received as a result of discussions leading up to or the entering into or performance of this Agreement (“Confidential Information”);not without the other party’s written consent to disclose the Confidential Information in whole or in part to any other person save those of its personnel and representatives involved in the business of Alexandra Llewellyn Design Limited or the Client; anduse the Confidential Information solely for the purposes of the Commission in accordance with the terms of this Agreement.The provisions of clause 12.2 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:trivial or obvious;already in the other party’s possession other than as a result of a breach of this clause;in the public domain; or required to be disclosed by law.Each of the parties undertakes to the other to make all relevant employees, agents and associates aware of the confidentiality of the Confidential Information and the provisions of this clause 12 and without prejudice to the generality of the foregoing to take all such steps as shall from time to time be necessary to ensure compliance.
Duration and Termination
This Agreement shall come into force on the date of acceptance by the Client and, subject to as provided in this clause 13, shall continue in force until the Fee has been paid by the Client in full and Alexandra Llewellyn Design Limited has delivered the Works to the Client.Save as otherwise provided herein, this Agreement may be terminated forthwith by Alexandra Llewellyn Design Limited or the Client if the other party:commits any material breach of any term of this Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within 14 days of a written request to remedy the same; or shall convene a meeting of its creditors or a proposal shall be made for a voluntary arrangement or a proposal for any other composition scheme or arrangement with its creditors or the other party shall be unable to pay its debts or if found guilty of trading fraudulently.Any termination of this Agreement pursuant to this clause 13 shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.Upon termination of this Agreement by Alexandra Llewellyn Design Limited, Alexandra Llewellyn Design Limited shall be entitled to immediately and without notice to the Client discontinue performance of any obligations arising under the terms of this Agreement and Alexandra Llewellyn Design Limited is entitled to the Fee and other payments due from the Client to Alexandra Llewellyn Design Limited under the terms of this Agreement.
Assignment and Successors
The Client shall not be entitled to assign this Agreement nor any rights and/or obligations hereunder without the prior written consent of Alexandra Llewellyn Design Limited, such consent not to be unreasonably withheld. For the avoidance of doubt Alexandra Llewellyn Design Limited shall be entitled to assign this Agreement to a third party where such an assignment is reasonable.This Agreement shall be binding upon and endure for the benefit of the successors in title of the parties hereto.
This Agreement sets out the entire understanding between Alexandra Llewellyn Design Limited and the Client with respect to its subject matter and supersedes all prior terms or conditions of contract and non-fraudulent representations, arrangements and understandings between the parties relating thereto.Nothing in these terms shall be deemed to constitute a partnership or agency relationship between Alexandra Llewellyn Design Limited and the Client and neither of the parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.If at any time any part of this Agreement is or becomes unenforceable, such part will be construed as far as possible to reflect the parties’ intentions and the remainder of the provisions will remain in full force and effect.No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.No person who is not a party to this Agreement shall be entitled to enforce any of the terms pursuant to the Contracts (Rights of Third Parties) Act 1999.This Agreement is made and shall be construed in accordance with the laws of England and Wales. The parties agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules and such arbitration to be held in London in English with one arbitrator presiding.