Terms and conditions

1. Definitions and Interpretation

1.1 In these terms and conditions the following expressions shall have the following meanings:

‘Agreement’ means these terms and conditions together with the agreement between Sprout and the Client for the execution of the Project, including all documents specifically appended thereto;

‘Client’ means the person(s), firm or company, which is a party to the Agreement with Sprout;

‘The Project’ means any work that it is agreed between Sprout and the Client that Sprout will undertake in accordance with these Terms and Conditions

‘Project Charges’ means the charges set out in the Agreement;

‘Confidential Information‘ means all information designated as such by either party in writing, all information relating to the business, affairs, products, developments, trade secrets, know how, personnel, customers and suppliers of either party, and all information which may reasonably be regarded as the confidential information of the disclosing party.

‘Intellectual Property Rights’ means patents, trade marks, service marks, rights in semi-conductor chip topographies, design rights, database rights, copyright, moral rights, know-how, trade or business names, goodwill, applications for any of the foregoing and other similar rights or obligations whether registerable or not in any country (including but not limited to the United Kingdom);

‘Specific Usage Rights’ means the rights granted to Sprout by a third party picture library;

‘Extended Usage Rights’ means the rights granted by Sprout pursuant to clause 5.3 below;

2. Legal Liability and other Claims

2.2 The Client will indemnify Sprout against any loss or damage which Sprout may incur as the result of all or any actions, claims, proceedings, demands or liabilities howsoever arising brought or arising against Sprout in respect of any Project, which has been approved by the client.

3. Standards

3.1 Sprout abides by the rulings of the Advertising Standards Authority and The Design Business Association and by the British Code of Advertising Practice and by other codes of standards laid down voluntarily within the marketing and publishing industry to ensure that all work produced by Sprout is legal, honest, decent and truthful.

3.2 In order to satisfy the requirements of these codes, the client agrees to supply Sprout with objective factual evidence, if so required, in support of any product claims the client wishes Sprout to make.

3.3 The Client agrees to inform Sprout without delay if the client considers that any claim or trade description in any publications submitted to the client by Sprout for approval is false or misleading in relation to the client’s products or services.

4. Information

4.1 The Client hereby undertakes to:

(a) provide Sprout with all information and documentation reasonably requested by Sprout to enable it to carry out the Project; and

(b) respond to all reasonable questions and requests made by Sprout, the answers to which and the fulfilment of which are within the Client’s competence to provide and are required to enable Sprout to carry out the Project;

4.2 The Client acknowledges that Sprout shall rely on the information and documentation provided to it by the Client in the planning and performance of the Project. The Client shall procure that all such information and documentation is correct and accurate.

5. Intellectual Property Rights

5.1 Unless otherwise agreed in writing all Intellectual Property Rights arising out of or as a result of work carried out by Sprout are and shall remain the sole property of Sprout.

5.2 Sprout agrees to assign to the Client, only on full and final settlement of any and all outstanding charges due to Sprout relating to the Project Specific Usage Rights to the work created by Sprout on behalf of the Client. This includes any logos, identity, colours, fonts, copy, software, devices and icons in both the printed and electronic form.

5.3 Should it be necessary for Sprout to purchase the rights to use a photograph or photographs (’Image’) from a third party picture library Sprout shall assign to the Client only such specific usage rights as Sprout receive from the picture library and the Client hereby warrants and undertakes that will not copy, deploy, publish or in any other way use the photographs for any purpose other than for the Project in accordance with the Specific Usage Rights unless otherwise agreed in writing.

5.4 Should it be necessary for Sprout to produce itself or commission production by a third party of an Image so that Sprout retains the copyright in the Image. Sprout shall assign Extended Usage Rights to the Client for a period of one year following completion of the Project or otherwise agreed in writing.

5.5 Sprout reserves the right to use any material produced on behalf of the client for its own promotional purposes. Unless expressly stated in writing by the client and agreed with Sprout, Sprout may from time to time use images of the work produced in promotional literature and on our website www.mangomedia.net and the Client expressly agrees that in doing so Sprout will not be breaching or otherwise interfering with the Clients Intellectual Property Rights.

5.6 The Client shall fully indemnify Sprout against any loss and damage suffered by Sprout arising from or incurred by reason of any infringement or alleged infringement (including but not limited to the defence of such alleged infringement) of any Intellectual Property Rights provided by or on behalf of the Client to Sprout for use in the performance of the Project.

6. Confidential Information

6.1 The Client acknowledges that Sprout and/or its employees, agents or subcontractors will have access to Confidential Information belonging to the Client.

6.2 Sprout agrees for a period of five years following termination of the Agreement not to disclose or otherwise make available (in whole or in part) the Confidential Information to any person, firm or corporation save its employees, consultants, professional advisors, agents, subcontractors or Associates who need to know the same;

6.3 The provisions of this clause 2 shall not apply to information that is:

(a) or becomes public knowledge otherwise than through the default of Sprout;

(b) any general marketing or advertising intelligence publicly available in relation to the Client’s product or service, which Sprout has gained in the course of any service that it has undertaken for and on behalf of the Client;

(c) legally already in the possession of Sprout and was not acquired directly or indirectly from the Client;

(d) legally acquired by Sprout from a third party on terms that do not impose any obligation to keep the same confidential;

(e) required to be disclosed by Sprout by law.

7. Force Majeure

7.1 Any delay or failure in the performance of the obligations of Sprout shall not give rise to any liability or claim if and to the extent that such failure shall have been caused by any occurrence beyond the reasonable control of Sprout including but not limited to acts of God, acts of terrorism, government action, decree, restriction, regulation or requirement or industrial action.

8. Charges and Payment

8.1 Sprout reserves the right to invoice for work done and disbursements incurred at times entirely at its own discretion.

8.2 Payment must be made by the Client to Sprout for all goods supplied work and labour done and services rendered within 28 days of the date of invoice, unless other terms are expressly agreed by Sprout. The Client acknowledges that time is of the essence with regard to payment and that any breach of this term will enable Sprout to exercise all of its legal rights including the right to withdraw credit and supply and to take legal action for the recovery of all outstanding amounts plus interest and legal costs. In consideration for the performance of the Project by Sprout, the Client shall pay to Sprout the Project Charges.

8.3 Unless otherwise agreed the Project Charges will include all travel within London postcodes, telephone and fax charges that we incur in the normal execution of the contract and digital artwork.

8.4 Unless otherwise agreed the Project Charges will not include and the Client will reimburse Sprout in addition to the Project Charges in relation to any extraordinary production costs, such as rush charges incurred through no fault of Sprout, all travel outside of London postcodes, hotel costs incurred by Sprout personnel in carrying out the Project, CD ROM creation, ISDN or other such electronic copy delivery, courier and guaranteed delivery charges, colour film, hard copy colour proofs and runouts, image costs, print costs and any reprographic charges.

8.5 Sprout shall be entitled to charge the Client interest (both before and after any judgement) on any late payments at the rate of 4% above the base rate from time to time of HSBC Bank plc, from the date such payment becomes due until payment of such sums has been made in full.

8.6 If a particular supplier requires payment to be made to them by specified dates failing which a surcharge will be incurred Sprout will pass on any such surcharges if the Client fails to pay before the due date.

8.7 Where Sprout is settling supplier invoices on behalf of the client and re-invoicing the client a commission will be added to the total cost of the supplier invoice to cover our administration costs.

9. Termination

9.1 Where appropriate the Agreement may be terminated by at least three months written notice either by the client or by Sprout. During this period Sprout will be entitled to receive all regular fees, project fees and where appropriate commissions and or bonus payments.

9.2 In addition to its rights set out in clause 9.1, Sprout may suspend performance of the Project or any other services under the Agreement in the event that the Client fails to make payment of any sums which have become due and has not indicated that it disputes, on reasonable grounds, its obligation to make such payment. The Client shall, in any event, make payment in full of such amounts as are not in dispute in accordance with the terms of the Agreement.

9.3 Upon Termination all outstanding sums to be paid by the Client to Sprout under the Agreement shall become immediately due and payable.

10. Waiver

10.1 No forbearance, delay or indulgence by either party in enforcing the provisions of the Agreement shall prejudice or restrict the rights of that party nor be construed or deemed to be a waiver of any of that party’s rights and no waiver of any breach shall operate as a waiver of any subsequent or continuing breach.

10.2 A person who is not a party to these Terms and Conditions shall have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any term of these Terms and Conditions but this shall not affect any right or remedy of a third party which exists or is available apart from that Act.

11. Entire Agreement

11.1 Any and all written or oral agreements previously existing between the parties with respect to the subject matter of the Agreement shall forthwith cease and determine and neither party shall have any liability to the other in respect of any such agreements.

12. Governing Law

12.1 The Agreement shall be governed by and construed in accordance with English law and the English courts will have exclusive jurisdiction to hear and determine any disputes arising from this Agreement.