Terms & Conditions

TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES  OF MAGPIE CREATIVE COMMUNICATIONS LIMITED 

1. Interpretation 

1.1 Definitions. In these Conditions, the following definitions apply: 

• Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for  business. 
• Client: the person or firm who purchases the Services from Magpie.  
• Commencement Date: has the meaning set out in clause 2.1. 
• Conditions: these terms and conditions as amended from time to time in accordance with clause 13.9. 
• Contract: the contract between Magpie and the Client for the supply of Services in accordance with the  Specification and these Conditions. 
• Credit Form: the credit form referred in clause 6.4. 
• Client Deliverables: the deliverables set out in the Specification. 
• Magpie: Magpie Creative Communications Limited (Company No: 7685325) whose registered office is situated at  1-5 Springfield Mount, Leeds, West Yorkshire, LS2 9NG.  
• Force Majeure Event: has the meaning given to it in clause 13.1(a). 
• Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade  marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or  to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right,  topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any  other intellectual property rights, in each case whether registered or unregistered and including all applications  for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part  of the world. 
• Order: the Client’s order for the supply of Services and Client Deliverables, as set out in the Client’s written  acceptance of Magpie’s quotation.  
• Services: the services supplied by Magpie to the Client as set out in the Specification.  
• Specification: the description or specification including any Specified Purpose for the Services and Client  Deliverables agreed between Magpie and the Client. 
• Specified Purpose: The proposed use of the Client Deliverables by the Client as detailed in the Specification. 
• Magpie Materials: has the meaning set out in clause 5.1(f). 
• Website: www.wearemagpie.com

1.2 In these Conditions, the following rules apply:  

(a) a person includes a natural person, corporate or unincorporated body (whether or not  having separate legal personality);  

(b) a reference to a party includes its personal representatives, successors or permitted  assigns; 

(c) a reference to a statute or statutory provision is a reference to such statute or statutory  provision as amended or re-enacted. A reference to a statute or statutory provision  includes any subordinate legislation made under that statute or statutory provision, as  amended or re-enacted;  

(d) any phrase introduced by the terms including, include, in particular or any similar  expression shall be construed as illustrative and shall not limit the sense of the words  preceding those terms; and 

(e) a reference to writing or written includes faxes and emails.  

2. Basis of contract 

2.1 The Order constitutes acceptance of these Conditions, on which date the Contract shall come into  existence. 

2.2 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it  has not relied on any statement, promise or representation made or given by or on behalf of Magpie  which is not set out in the Contract. Any samples, drawings, descriptive matter or advertising issued by  Magpie and any descriptions or illustrations included on the Website or contained in any of Magpie’s  catalogs or brochures are issued or published for the sole purpose of giving an approximate idea of  the Services described in them. They shall not form part of the Contract or any other contract between  Magpie and the Client for the supply of the Services.  

2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to  impose or incorporate, or which are implied by trade, custom, practice or course of dealing. 

2.4 Any quotation given by Magpie shall not constitute an offer, and is only valid for a period of 60 (sixty)  days from its date of issue. 

3. Supply of Services 

3.1 Magpie shall provide the Services to the Client in accordance with the Specification in all material  respects, and shall provide such Client Deliverables as are specified in the Specification 

3.2 Magpie shall use all reasonable endeavours to meet any performance dates for the Services specified  in the Contract, but any such dates shall be estimates only and time shall not be of the essence for the  performance of the Services. For the avoidance of doubt, Magpie shall not be liable where performance  dates are not met for reason of (including but not limited to) the Client’s delay in providing necessary  information or materials. 

3.3 Magpie shall have the right to make any changes to the Services which are necessary to comply with  any applicable law or safety requirement, or which do not materially affect the nature or quality of the  Services, and Magpie shall notify the Client in any such event. 

3.4 Magpie warrants to the Client that the Services will be provided using reasonable care and skill. 

4. Delivery of the Client Deliverables 

4.1 Magpie shall ensure that each delivery of the Client Deliverables is accompanied by a delivery note  which shows the date of the order and the type and quantity of the Client Deliverables and, if the order  is being delivered in installments, the outstanding balance of the Client Deliverables to be delivered.

4.2 Delivery of the Client Deliverables shall be completed on the Client Deliverables’ arrival at the location  notified by the Client to Magpie for delivery. 

4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.  Magpie shall not be liable for any delay in the delivery of the Client Deliverables that is caused by a  Force Majeure Event or the Client’s failure to provide Magpie with adequate delivery instructions or any  other instructions that are relevant to the supply of the Client Deliverables. 

4.4 If Magpie fails to deliver the Client Deliverables, its liability shall be limited to the costs and expenses  incurred by the Client in obtaining replacement goods of similar descriptions and quality in the cheapest  market available, less the price of the Client Deliverables. Magpie shall have no liability for any failure to  deliver the Client Deliverables to the extent that such failure is caused by a Force Majeure Event of the  Client’s failure to provide Magpie with adequate delivery instructions or any other instructions that are  relevant to the supply of the Client Deliverables. 

4.5 The Client shall not be entitled to reject the Client Deliverables if Magpie delivers up to and including  5% more or less in the quantity of Client Deliverables ordered, but a pro rata adjustment shall be made  to the invoice on receipt of notice from the Client that the wrong quantity of Client Deliverables was  delivered. 

5. Client’s obligations 

5.1 The Client shall: 

(a) ensure that the terms of the Order and the information it provides in the Specification are  complete and accurate; 

(b) co-operate with Magpie in all matters relating to the Services; 

(c) provide Magpie with such information and materials as Magpie may reasonably require to  supply the Services, and ensure that such information is accurate in all material respects;  

(d) be responsible for checking, on receipt of the proof, that all details contained on or in any  Client Deliverables are accurate in all respects, including (but not restricted to) spelling,  colours, information and advert placements. 

(e) obtain and maintain all necessary licences, permissions and consents which may be  required for the Services before the date on which the Services are to start; 

(f) keep and maintain all materials, equipment, documents and other property of Magpie  (Magpie Materials) at the Client’s premises in safe custody at its own risk, maintain the  Magpie Materials in good condition until returned to Magpie, and not dispose of or use  the Magpie Materials other than in accordance with Magpie’s written instructions or  authorisation; 

(g) nominate a person who is at all material times authorised to make decisions on behalf of  and to bind the Client and who will liaise directly with Magpie in relation to the Services;  and 

(h) remove any items present in connection with the Contract from any Location in a timely  manner without causing any disturbance. In the event that the Client fails to fulfil this  obligation Magpie at its complete discretion reserves the right to arrange for the removal  and storage of any such items and thereafter to render an invoice for such removal and  storage to the Client. 

5.2 If Magpie’s performance of any of its obligations in respect of the Services is prevented or delayed  by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client  Default): 

(a) Magpie shall without limiting its other rights or remedies have the right to suspend  performance of the Services until the Client remedies the Client Default, and to rely on the  Client Default to relieve it from the performance of any of its obligations to the extent the  Client Default prevents or delays Magpie’s performance of any of its obligations; 

(b) Magpie shall not be liable for any costs or losses sustained or incurred by the Client arising  directly or indirectly from Magpie’s failure or delay to perform any of its obligations; and 

(c) the Client shall reimburse Magpie on written demand for any costs or losses sustained or  incurred by Magpie arising directly or indirectly from the Client Default. 

6. Charges and payment 

6.1 The charges for Services shall be the price set out on the Order.  

6.2 Magpie reserves the right to:  

(a) increase the price of the Services, without giving notice to the Client at any time before  delivery, to reflect any increase in the cost of the materials to Magpie that is due to: 

(i) any factor beyond the control of Magpie (including foreign exchange  fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); 

(ii) any request by the Client to change the Specification in respect of the Services;  or 

(iii) any delay caused by any instructions of the Client in respect of the Services  or failure of the Client to give Magpie adequate or accurate information or instructions in respect of the Services. 

6.3 Clients with no previous trading history with Magpie or otherwise at Magpie’s complete discretion will  be required to pay for the Services in full before commencement of any production and/or delivery.  In certain circumstances (with explicit agreement with Magpie only) payment in installments may be  accepted in lieu of full payment. This is entirely at Magpie’s discretion. 

6.4 Subject to clause 6.3, upon acceptance of a completed Credit Form, 50% deposit and satisfactory references received, Magpie may at its discretion offer the Client credit terms. In such cases, the Client  shall pay each invoice submitted by Magpie: 

(a) within 30 (thirty) days of the date of the invoice; and 

(b) by cheque, BACS, CHAPS, electronic or telegraphic transfer made payable to Magpie  Creative Communications Limited, and time for payment shall be of the essence of the Contract. 

6.5 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value  added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Magpie to the Client, the Client shall, on receipt of a valid VAT invoice from  Magpie, pay to Magpie such additional amounts in respect of VAT as are chargeable on the supply of  the Services at the same time as payment is due for the supply of the Services. 

6.6 Without limiting any other right or remedy of Magpie, if the Client fails to make any payment due to  Magpie under the Contract by the due date for payment (Due Date), Magpie shall have the right to  charge interest on the overdue amount at the rate of 5 (five) per cent per annum above the then current  Lloyds Bank plc’s base lending rate accruing on a daily basis from the Due Date until the date of actual  payment of the overdue amount, whether before or after judgment, and compounding quarterly. 

6.7 Magpie reserves the right to submit an invoice to the Client for services rendered to date where  the completion of the Client Deliverables is either delayed by the Client for more than 30 days or is  abandoned. Payment of such invoice shall be due within 7 days. 

6.8 The Client shall pay all amounts due under the Contract in full without any deduction or withholding  except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim  against Magpie in order to justify withholding payment of any such amount in whole or in part. Magpie  may, without limiting its other rights or remedies, set off any amount owing to it by the Client against  any amount payable by Magpie to the Client. 

7. Title and Risk 

7.1 The risk in the Client Deliverables shall pass to the Client on completion of delivery. 

7.2 Title to the Client Deliverables shall not pass to the Client until Magpie has received payment in full (in  cash or cleared funds) for: 

(a) The Client Deliverables; and 

(b) Any other goods or services that Magpie has supplied to the Client in respect of which  payment has become due. 

7.3 If before title to the Client Deliverables passes to the Client the Client becomes subject to any of the  events listed in clause 11.1, or Magpie reasonably believes that any such event is about to happen and  notifies the Client accordingly, then, provided that the Client Deliverables are still within the control of  the Client, and without limiting any other rights of remedy Magpie may have, Magpie may at any time  require the Client to deliver up the Client Deliverables and, if the Client fails to do so promptly, enter  any premises of the Client or of any third party where the Client Deliverables are stored in order to  recover them. 

8. Assignment of Intellectual Property Rights 

8.1 Pursuant to these Conditions and upon payment in full by the Client to Magpie (receipt of which  Magpie expressly acknowledges) of all sums due under the Contract, Magpie shall issue to the Client  an non-assignable non-exclusive irrevocable licence to use all Intellectual Property Rights in or arising  out of or in connection with the Services for the Specified Purpose, including the right to bring, make,  oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages  recovered) in respect of any infringement, or any other cause of action arising from ownership, of any  of the Intellectual Property Rights whether occurring before, on, or after the date of this assignment. All  

Intellectual Property Rights in or arising out of or in connection with the Services, including moral rights  pursuant to Chapter IV of the Copyright, Designs and Patents Act 1988, shall be owned by Magpie. The  Client shall not permit a third party to use, amend, alter or otherwise deal with Intellectual Property  owned by Magpie in or arising out of or in connection with the Services or the Client Deliverables. 

8.2 For the avoidance of doubt, no licence shall be granted to the Client until the conditions set out in  clause 8.1 are satisfied. 

8.3 The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Goods  or Services, the Client’s use of any such Intellectual Property Rights is conditional on Magpie obtaining  a written licence from the relevant licensor on such terms as will entitle Magpie to license such rights  to the Client. 

8.4 Magpie takes no responsibility for the infringement of any Intellectual Property Rights of any third  party in the execution of the Client’s instructions and it is the Client’s entire responsibility to obtain all  necessary licences or permissions and to indemnify Magpie against all claims, actions, proceedings,  costs and losses arising out of such an infringement. The Client warrants that it either owns or possesses  valid licences or permissions to use any and all Intellectual Property Rights which subsist in any materials  supplied by the Client to Magpie. 

8.5 All Magpie Materials are the exclusive property of Magpie. 

9. Confidentiality 

A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications,  inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving  Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential  information concerning the Disclosing Party’s business or its products or its services which the Receiving Party  may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees,  agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations  under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of  confidentiality corresponding to those which bind the Receiving Party. This clause 9 shall survive termination of  the Contract. 

10. Limitation of liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE 

10.1 Nothing in these Conditions shall limit or exclude Magpie’s liability for: 

(a) death or personal injury caused by its negligence, or the negligence of its employees,  agents or subcontractors; 

(b) fraud or fraudulent misrepresentation; 

(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982  (title and quiet possession);  

(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet  possession); or 

(e) defective products under the Consumer Protection Act 1987.

10.2 Subject to clause 10.1: 

(a) Magpie shall not be liable to the Client, whether in contract, tort (including negligence),  breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or  consequential loss arising under or in connection with the Contract (including any losses  that may result from a deliberate breach of the Contract by Magpie, its employees, agents  or subcontractors); and 

10.3 Magpie’s total liability to the Client in respect of all other losses arising under or in connection with  the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise,  including a deliberate breach of the Contract by, its employees, agents or subcontractors shall not  exceed the total cost of the Services. Except as set out in these Conditions, all warranties, conditions  and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded  from the Contract.  

10.4 This clause 10 shall survive termination of the Contract. 

11. Termination 

11.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate  effect by giving written notice to the other party if:  

(a) the other party commits a material breach of its obligations under this Contract and (if  such breach is remediable) fails to remedy that breach within 10 days after receipt of notice  in writing of the breach; 

(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to  pay its debts as they fall due or admits inability to pay its debts or (being a company) is  deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act  1986 or (being an individual) is deemed either unable to pay its debts or as having no  reasonable prospect of so doing, in either case, within the meaning of section 268 of the  Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing  apply;  

(c) the other party commences negotiations with all or any class of its creditors with a view  to rescheduling any of its debts, or makes a proposal for or enters into any compromise  or arrangement with its creditors other than (where a company) for the sole purpose of a  scheme for a solvent amalgamation of that other party with one or more other companies  or the solvent reconstruction of that other party; 

(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in  connection with the winding up of the other party (being a company) other than for the  sole purpose of a scheme for a solvent amalgamation of the other party with one or more  other companies or the solvent reconstruction of that other party; 

(e) the other party (being an individual) is the subject of a bankruptcy petition or order;  

(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress,  execution, sequestration or other such process is levied or enforced on or sued against,  the whole or any part of its assets and such attachment or process is not discharged within  14 days; 

(g) an application is made to court, or an order is made, for the appointment of an  administrator or if a notice of intention to appoint an administrator is given or if an  administrator is appointed over the other party (being a company);  

(h) a floating charge holder over the assets of the other party (being a company) has  

become entitled to appoint or has appointed an administrative receiver; 

(i) a person becomes entitled to appoint a receiver over the assets of the other party or a  receiver is appointed over the assets of the other party; 

(j) any event occurs, or proceeding is taken, with respect to the other party in any  jurisdiction to which it is subject that has an effect equivalent or similar to any of the  events mentioned in clause 11.1(b) to clause 11.1(i) (inclusive); 

(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry  on, all or substantially the whole of its business; or 

(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether  mental or physical), is incapable of managing his own affairs or becomes a patient under  any mental health legislation. 

11.2 Without limiting its other rights or remedies, Magpie may terminate the Contract: (a) by giving the Client one months’ written notice; (b) with immediate effect by giving written notice to the Client if the Client fails to pay any  amount due under this Contract on the due date for payment. 

11.3 Without limiting its other rights or remedies, Magpie shall have the right to suspend the supply of  Services under the Contract or any other contract between the Client and Magpie if: 

(a) the Client fails to make pay any amount due under this Contract on the due date for  payment; or 

(b) the Client becomes subject to any of the events listed in clause 11.1(b) to clause 11.1(l),  or Magpie reasonably believes that the Client is about to become subject to any of  them. 

12. Consequences of termination 

On termination of the Contract for any reason:  

(a) the Client shall immediately pay to Magpie all of Magpie’s outstanding unpaid invoices  and interest and, in respect of Services supplied but for which no invoice has yet  been submitted, Magpie shall submit an invoice, which shall be payable by the Client  immediately on receipt; 

(b) the Client shall return all of the Magpie Materials . If the Client fails to do so, then  Magpie may enter the Client’s premises and take possession of them. Until they have  been returned, the Client shall be solely responsible for their safe keeping and will not  use them for any purpose not connected with this Contract; 

(c) the accrued rights and remedies of the parties as at termination shall not be affected,  including the right to claim damages in respect of any breach of the Contract which  existed at or before the date of termination or expiry; and 

(d) clauses which expressly or by implication have effect after termination shall continue in  full force and effect.

13. General 

13.1 Force majeure:

(a) For the purposes of this Contract, Force Majeure Event means an event beyond the  reasonable control of Magpie including but not limited to strikes, lock-outs or other  industrial disputes (whether involving the workforce of the party or any other party),  failure of a utility service or transport network, act of God, war, riot, civil commotion,  malicious damage, compliance with any law or governmental order, rule, regulation or  direction, accident, breakdown of plant or machinery, fire, flood, storm or default of  suppliers or subcontractors.  

(b) Magpie shall not be liable to the Client as a result of any delay or failure to perform its  obligations under this Contract as a result of a Force Majeure Event. 

(c) If the Force Majeure Event prevents Magpie from providing any of the Services for more  than two weeks, Magpie shall, without limiting its other rights or remedies, have the  right to terminate this Contract immediately by giving written notice to the Client. 

13.2 Assignment and subcontracting: 

(a) Magpie may at any time assign, transfer, charge, subcontract or deal in any other manner  with all or any of its rights under the Contract and may subcontract or delegate in any  manner any or all of its obligations under the Contract to any third party. 

(b) The Client shall not, without the prior written consent of Magpie, assign, transfer,  charge, subcontract or deal in any other manner including Specified Purpose with all or  any of its rights or obligations under the Contract. 

13.3 Notices: 

(a) Any notice or other communication required to be given to a party under or in connection  with this Contract shall be in writing and shall be delivered to the other party personally  or sent by prepaid first-class post, recorded delivery or by commercial courier, at its  registered office (if a company) or (in any other case) its principal place of business, by  email or sent by fax to the other party’s main fax number.  

(b) Any notice or other communication shall be deemed to have been duly received if  delivered personally, when left at such addressor, if sent by prepaid first-class post or  recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered  by commercial courier, on the date and at the time that the courier’s delivery receipt is  signed, or if sent by fax or email, on the next Business Day after transmission.  

(c) This clause 13.3 shall not apply to the service of any proceedings or other documents in  any legal action. For the purposes of this clause, “writing” shall include emails. 

13.4 Waiver and cumulative remedies:  

(a) A waiver of any right under the Contract is only effective if it is in writing and shall not  be deemed to be a waiver of any subsequent breach or default. No failure or delay by  a party in exercising any right or remedy under the Contract or by law shall constitute a  waiver of that or any other right or remedy, nor preclude or restrict its further exercise.  No single or partial exercise of such right or remedy shall preclude or restrict the further  exercise of that or any other right or remedy.  

(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative  and do not exclude rights provided by law. 

13.5 Severance: 

(a) If a court or any other competent authority finds that any provision of the Contract (or part of  any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to  the extent required, be deemed deleted, and the validity and enforceability of the other  provisions of the Contract shall not be affected. 

(b) If any invalid, unenforceable or illegal provision of the Contract would be valid,  enforceable and legal if some part of it were deleted, the provision shall apply with the  minimum modification necessary to make it legal, valid and enforceable. 

(c) Non-Solicitation: The Client agrees that they will not, either on their own account or in  partnership or association with any person, firm, company or organisation or otherwise,  whether directly or indirectly and during or for a period of six months from the end of  the term of the Contract, solicit or entice away or attempt to entice away, or contract  directly with, any employee of Magpie who has worked on the Services provided under  the Contract. 

(d) No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute  a partnership or joint venture of any kind between any of the parties, nor constitute any  party the agent of another party for any purpose. No party shall have authority to act as  agent for, or to bind, the other party in any way. 

(e) Third parties: A person who is not a party to the Contract shall not have any rights under  or in connection with it. 

(f) Variation: Any variation, including the introduction of any additional terms and conditions,  to the Contract shall only be binding when agreed in writing and signed by Magpie. 

(g) Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in  connection with it or its subject matter or formation (including non-contractual disputes  or claims), shall be governed by, and construed in accordance with, English law, and the  parties irrevocably submit to the exclusive jurisdiction of the courts of England.