These terms and conditions shall govern the contract between Mesmerise Media Limited (“Mesmerise Media”) (1) and the Client (2). Mesmerise Media may agree on modifications to these terms, but such modifications must be in writing signed by a Director of Mesmerise Media and cannot be inferred from a course of behaviour. Where any of these provisions conflict with any special terms that are expressly agreed in writing with a Client in relation to a particular piece of work (usually included as part of an estimate document or proposal (the “Estimate”)) then the special terms shall take precedence.

1. Scope of the Contract

1.1.  Mesmerise Media is an independent, creative, advertising, branding, marketing, public relations and design studio/agency whose work includes, brand identity and promotion; corporate identity; packaging design; structural design; corporate literature; licensing; brand positioning; brand invention; innovation; name generation; market audits developing creative concepts and identities; creative campaigns; copywriting; branding; graphic design; print design; e-commerce; photography media buying and other services relating to the design and promotion of the Client’s goods and/ or services and the Client’s brand and identity (the “Service”). Mesmerise Media will provide such advice in accordance with a written Estimate from such provision it will produce a final solution that is selected for implementation (the “Work”).

1.2.  These terms and conditions are to be read together with any Estimate provided by Mesmerise Media to the Client.

1.3.  Mesmerise Media will provide the Service to the Client using reasonable skill and care (unless Mesmerise Media is prevented by circumstances beyond its reasonable control).

1.4.  Save in exceptional circumstances for minor projects where Mesmerise Media issue a written order confirmation, all Client orders must be in writing and either incorporate/detail all of the work to be undertaken by Mesmerise Media, the charges for the work and the agreed time schedule or refer to the appropriate Estimate.

1.5.  A binding contract for the provision of the Service, incorporating these terms and conditions, will only be made when the Client confirms in writing or by way of a purchase order (for the full amount as stated in the Estimate) its acceptance of the Estimate received from Mesmerise Media. Where any changes are agreed to any aspect of the Estimate then Mesmerise Media will issue a revised Estimate incorporating the agreed changes. An Estimate (errors and omissions excepted) remains open for acceptance by the Client for a period of 30 days from the issue (or longer by written agreement). Mesmerise Media reserves the right to withdraw or amend and Estimate at any time prior to acceptance by the Client.

1.6.  Subject to the provisions of Clause 9 the Client shall be expected to carry out an appropriate examination of the Service supplied by Mesmerise Media as soon as is reasonably practicable following delivery. In the absence of any complaint, the Client shall be deemed to have accepted the quality of the Service.

1.7.  Mesmerise Media will only accept and act upon instructions communicated to it in writing by the appointed Project Manager for the Client and Mesmerise Media is not obliged to seek verification of such instructions.

1.8.  During the course of the Service Mesmerise Media and/or the Client may suggest modifications to the agreed Estimate including delivery estimates and specification of the work. Any such modifications must always be agreed upon in writing and may incur additional fees and expenses.

1.9.  Mesmerise Media reserves the right to make modifications to the Service which are necessary to comply with any applicable law.

1.10.  Mesmerise Media is not required to keep records of its work following completion of a project unless agreed as part of the Service.

1.11.  All original preparatory and development materials including but not limited to sketches, scamps, notes, mock-ups, prototypes etc, as well as any source material, both digital and physical, produced by Mesmerise Media as part of the Service remains the property of Mesmerise Media unless expressly agreed in writing to the contrary and shall be promptly returned undamaged and unmarked at the end of the project under which they were created or upon Mesmerise Media’ request.

1.12.  If third parties are engaged by the Client in relation to matters which impact upon the Service, then the Client will take reasonable steps to ensure that they fully co-operate with Mesmerise Media.

1.13.  Mesmerise Media do not warrant the work or products of third parties, that any statutory approvals will be granted, the solvency of any third party associated with the Service (whether or not they were appointed on the advice or recommendation of Mesmerise Media) or that the Service will or can be completed in accordance with any agreed timetable.

1.14.  The responsibility of Mesmerise Media goes no further than to ensure that the Service will be suitable for use in relation to the purpose disclosed to Mesmerise Media and taken into account when giving an Estimate.

2. Client’s Obligations

2.1.  The Client shall be solely responsible for providing Mesmerise Media with all necessary information concerning its goods/ services (including the scope of use required, rules of use, any relevant restrictions, any relevant statutory and regulatory controls and, if applicable, industry codes of practice), the market and generally. Mesmerise Media shall not be responsible for any shortcomings in such information. The Client accepts that its knowledge and experience in its industry sector and of its goods/services is vital in this regard.

2.2.  The Client shall be responsible for procuring all necessary permissions, licences and consents which may be required for the provision of the Service unless Mesmerise Media has expressly agreed in writing to be responsible.

2.3.  The Client warrants that it either owns or holds the necessary licences in respect of materials supplied by it to Mesmerise Media in connection with the provision of the Service and shall indemnify Mesmerise Media against all costs, claims, liabilities and losses if this is not the case. The Client is responsible for ensuring that all materials supplied by or on its behalf to Mesmerise Media for use in connection with the Service do not infringe any law or regulation.

2.4. The Client is responsible for informing Mesmerise Media of any changes which might affect the Service.

2.5. The Client shall be responsible for signing off work in writing or providing approval of any part of the Service when requested in accordance with any agreed time schedule. Subject to clause 3, should the Client not sign off the work or give the approval within 7 days of the agreed time or any other reasonable period stipulated by Mesmerise Media, the work will be deemed to have been signed off or approved.

2.6. If Mesmerise Media is required to amend/redo work that has previously been signed off then an additional charge will usually be incurred.

2.7. The Client must supply Mesmerise Media with all required materials in accordance with agreed work schedules and the Client recognises that failure to do so is likely to result in delay and/or additional charges.

2.8. Failure of the Client to meet any of its obligations (including but not limited to providing information or content when required and signing off work) is likely to affect the ability of Mesmerise Media to meet deadlines and lead times and in such circumstances, Mesmerise Media has the right to require that an appropriate adjustment is made.

3. Delivery

3.1. Mesmerise Media will use its reasonable endeavours to meet Client timescales however the delivery times of the Service stated by Mesmerise Media are reasonable estimates and Mesmerise Media shall not be responsible for any delay that is not directly attributable to the fault of Mesmerise Media or due to circumstances beyond Mesmerise Media’ reasonable control. Time shall not be of the essence unless expressly agreed in writing.

3.2. The Client must inform Mesmerise Media if any materials to be supplied as part of the Service are not received either on the due date of delivery or within a reasonable period of time following the Client being notified of them being sent.

3.3. Mesmerise Media is not responsible for any loss of or damage to the material after it has been delivered to the Client or in accordance with its instructions.

3.4. In the event that Mesmerise Media is unable to perform any of its obligations in respect of the Service then if such delay or failure results from events, circumstances or causes beyond its reasonable control then the following shall apply: –

3.4.1. Mesmerise Media will be entitled to a reasonable extension of time for performing such obligations; and

3.4.2. either party may cancel the contract by giving the other party 14 days written notice if the delay on non-performance continues for a period of 12 weeks or more; this clause does not affect Mesmerise Media’ right to payment for work carried out up to the date of suspension/cancellation.

4. Contract Prices/Title

4.1. The fee for the Service is as set out in the Estimate. The fee stated will be the fixed cost of providing the Service unless expressly stated to be an Estimate in which case the fee will be determined according to the time that is spent or as stipulated in the Estimate. Where there is an agreed time schedule, staged payments may be required, which will require sign off by the Client at each stage. Any agreed additional work or modifications of the Service outside of the scope of any agreed Estimate will be charged as an additional fee.

4.2. An initial payment on account of up to 50% of the Estimate for existing Clients and up to 100% of the Estimate for new Clients is to be paid by the Client before commencement of the Service. New Clients are required to pay the full Estimate fee in advance.

4.3. Unless expressly stated as part of an Estimate any fixed fee or estimate given by Mesmerise Media does not include third party / sub-contractor costs.

4.4. All media costs (including but not limited to advertising space in magazines and television) and third-party expenses are to be paid to Mesmerise Media by the Client in advance of them being incurred.

4.5. The Client shall be responsible for all reasonable expenses incurred by Mesmerise Media in the delivery of the Service. This may include, for example, studio costs, storage, photocopying, printing, proofs, photography, custom fonts, costs of any sub-contractors or suppliers or manufacturers engaged by Mesmerise Media, materials, accommodation, travel, subsistence, mail and courier together with any local taxes.

4.6. The fees, cost of third-party suppliers not included in the fees, other charges made pursuant to these terms, expenses, VAT and local taxes shall constitute the contract price (‘Contract Price’).

4.7. Any Estimate given of any part of the Contract Price is based upon information available to Mesmerise Media at the time and the estimated number of hours to perform the Service and unless otherwise specified shall remain valid for 14 business days, all errors and omissions excepted. Mesmerise Media reserves the right to withdraw or amend an Estimate at any time prior to the formation of contractual relations.

4.8. Save as agreed on a case by case basis (to include the making of payments in advance) Mesmerise Media will usually invoice the Contract Price to the Client on a date/dates specified within the Estimate and unless a fixed fee has been agreed then the fee charged will be based upon the actual number of hours spent performing the Service and in accordance with the hourly rates set out in the rate card current at the time. Unless a payment plan has been agreed all invoices are to be paid within 30 days of the date of the invoice. Payment of the Contract Price shall be made in GB Pounds Sterling. Mesmerise Media is entitled to charge statutory interest on any late payment.

4.9. Any queries the Client has on an invoice must be brought to Mesmerise Media’ attention within 7 days of receipt.

4.10. Any agreed fee or Estimate of the Contract Price assumes delivery of the Service to the principal business address of the Client or as stipulated in the Estimate and additional charges may be incurred if delivery is required to another address.

4.11. Any agreed fee or Estimate assumes all content supplied by the Client to Mesmerise Media is in a digitalised format. Unclear documents or resource materials supplied to Mesmerise Media by or on behalf of the Client that cannot be used without preparation may result in an additional charge.

4.12. Any work that could not reasonably have been anticipated and taken into account when preparing a free estimate (including but not limited to the conversion of file types, the supply of photographic material not of print quality or time spent locating and extracting items from a large volume of Client material), may result in additional charges.

4.13. Mesmerise Media shall be entitled to make an additional charge should it become necessary to work unsocial hours to meet any agreed timeframe although wherever practicable to do so, Mesmerise Media will notify the Client before such work is undertaken.

4.14. Notwithstanding the provisions of clause 4.2, Mesmerise Media reserves the right to require all or any part of the Contract Price (including third party costs) to be paid in advance and before the commencement of work.

4.15. Unless agreed in writing the Client may not withhold payment of any part of the Contract Price or any expenses or other monies due to Mesmerise Media.

4.16. Title to the goods and/or licence to use any property or intellectual property forming part of the Service shall only pass to the Client when the full Contract Price for the Service has been paid.

4.17. Mesmerise Media shall have a lien over any property (in whatever form) supplied to it or on behalf of a Client until all payments due to it by the Client have been made in full.

4.18. The Contract Price will usually be payable in accordance with a payment plan agreed with the Client and set out within the Estimate. Mesmerise Media reserves the right to withhold or suspend the Service including the delivery of work and the provision of any web hosting services to the Client where any payment or part thereof is outstanding. Clients should be aware that when this right is exercised it may result in the website being hosted by or through Mesmerise Media being taken down.

4.19. The Client shall pay Mesmerise Media’ expenses incurred by or in connection with the recovery of monies owed by the Client to Mesmerise Media.

4.20. All Estimates make provision for three rounds of Client amends during the artwork design stage and any additional amends during this stage or amends at any other stage will be charged for as additional work.

4.21. If Mesmerise Media is required to proof materials supplied by a third party, then additional charges will be incurred unless this has been expressly agreed as part of the Service.

5. Intellectual Property

5.1. Subject to rights of those parties and save in respect of open source material used by Mesmerise Media, the copyright and/ or design and/or moral right and/or other Intellectual Property rights recognised anywhere in the world (and whether registerable or not) in any literary or artistic work including all design work (such as specifications, designs, materials, drawings, illustrations, texts, photographs, prototypes, objects, models and mock-ups, whether stored or displayed physically or electronically and in whatever medium) (“the Intellectual Property”) belongs exclusively to Mesmerise Media and is hereby asserted.

5.2. Subject to clause 5.3, on completion of the Service and payment of the Contract Price in full and subject to any third-party rights in the Work (as identified by Mesmerise Media) Mesmerise Media shall transfer/grant to the Client:

5.2.1. the copyright and design rights belonging to Mesmerise Media in the final front end work (generally of a visual appearance nature) selected for implementation including any two-dimensional graphic design solution, branding, logo, logo-type, corporate identity, music, film, photographs, digital page layout, front-end user interface and content (“the Creative Work”); and

5.2.2. where appropriate given the nature of the brief a non-exclusive licence (exclusive where expressly agreed in writing as part of the Estimate) to use the intellectual property rights belonging to Mesmerise Media in all coding and programming required for the use of the final selected work including any content management system for updating the work or similar programming tools and any other elements of the Service which are not part of the visual appearance of the final selected work (“the Technical Back End”).

5.3. No rights in any work created by Mesmerise Media before its engagement and which is then used in work created as part of the Service will pass to the Client, but Mesmerise Media grant the Client a non-exclusive licence to use the Work for the purpose of the particular project.

5.4. Pending payment of the Contract Price in full, Mesmerise Media shall grant the Client a revocable and non-exclusive temporary licence to use the Work produced by Mesmerise Media for all reasonable purposes associated with the approval, checking or testing of the work.

5.5. If any payment due to Mesmerise Media under the contract is not paid within 14 days of the due date, then the licence referred to above shall be suspended until all outstanding payments have been made.

5.6. The Client shall not, without prior express written approval from Mesmerise Media, use the Work arising from the Service for any purpose outside of the scope of the brief as reflected in the Estimate.

5.7. Any licence granted to the Client in respect of the Work produced as part of the Service shall not unless specified in the Estimate includes a right to adapt or modify such work.

5.8. New Development

The Client acknowledges that any new inventions, designs or processes which evolve in the provision of the Service shall belong to Mesmerise Media unless the development and ownership thereof by the Client was an express written term of the engagement of Mesmerise Media.

5.9. Fonts

5.9.1. Mesmerise Media may use licensed fonts in the provision of the Service. Any such use is personal to Mesmerise Media and it may be necessary for the Client to obtain at its own cost a licence for the enjoyment and use of the Work. Mesmerise Media is not liable for any failure of the Client to hold the necessary licence(s).

5.9.2. Mesmerise Media may use open source fonts in the provision of the Service. Mesmerise Media will not grant any licence or give any warranty in respect of such fonts.

5.10. Reservation of Technical and Artistic Concepts Mesmerise Media will not infringe the rights of the Client in the Work but reserve exclusive ownership of and the right to use all other designs, concepts, ideas or Intellectual Property developed during the course of the Service.

5.11.  Multi Designs. If more than one design solution/concept is chosen by the Client and this was not provided for in the agreed Estimate for the Service an additional fee will be payable by the Client.

5.12.  Subcontractors’ Intellectual Property

5.12.1. Mesmerise Media will use reasonable endeavours to procure an assignment of the appropriate rights of its subcontractors, which are incorporated in the Work.

5.12.2.  Clients are reminded that photographers, illustrators and film producers often retain ownership of the original work and may demand that it is returned undamaged, although this should not restrict the Client’s use within any negotiated usage rights.

5.12.3.  Rights in stock photography and music will always be non-exclusive unless Mesmerise Media has expressly agreed to acquire exclusivity of usage for the Client. The Client indemnifies Mesmerise Media against any cost, claims and liabilities where it continues to use such work outside the scope of the negotiated usage rights.

5.13.  Originality

5.13.1. Mesmerise Media warrants that its own design work is original and that it will not knowingly or negligently infringe the rights or intellectual property of a third party but (unless expressly agreed to the contrary in writing) it is the Client’s sole responsibility to make all appropriate searches or enquiries in this regard at the appropriate time. Beyond the scope of this warranty, Mesmerise Media shall have no liability to the Client in respect of any infringement or alleged infringement of Intellectual Property of any third party or passing off.

5.13.2. Mesmerise Media gives no warranty as to whether the Work meets any criteria for the registration of intellectual property rights and shall have no liability to the Client in respect of any failure to register.

5.14.  Further Assurance

Mesmerise Media will, at the cost of the Client, execute such documents and do such things as are reasonably necessary to give effect to this clause.

6. Moral Rights

6.1.  Mesmerise Media hereby reserves and asserts all moral rights in the Work created during the Service.

6.2.  The Client shall give reasonable attribution to Mesmerise Media as the author of the Work wherever appropriate.

7. Cancellation of Contract

7.1.  The Client may cancel the Service upon at least one month’s written notice and upon cancellation shall pay to Mesmerise Media all fees due for work is undertaken by Mesmerise Media up until the date of cancellation (or when the cancellation is by the Client, up to the end of the stage of work during which the agreement was terminated). This includes work undertaken by its subcontractors and all disbursements, expenses and third-party costs commissioned by Mesmerise Media which cannot be cancelled.

7.2.  Following cancellation but subject to the payment to Mesmerise Media of the full Contract Price on the basis of the work as envisaged by the Estimate being completed in full, the Client shall be entitled to select and will receive Intellectual Property rights in accordance with clause 5 in one of the design solutions/concepts that have been presented to the Client prior to the date of cancellation. Save as provided in clause 7.5, unless the Client shall make this payment, it shall receive no rights in any Intellectual Property arising from the Service.

7.3.  Any materials relating to any design solutions presented by Mesmerise Media prior to cancellation (save that selected pursuant to clause 7.2 above) shall be returned forthwith.

7.4.  Mesmerise Media shall be entitled to cancel the Contract immediately if any part of the Contract Price (for any work being undertaken for the Client) is outstanding (but not formally disputed) 30 days after the due date or if the Client shall go into liquidation, receivership (or if proceedings are issued in relation thereto) or equivalent or if it shall enter into an agreement with its creditors. In such circumstances, the provision of clause 7.2 shall not apply and the Client shall receive no interest or rights in any of the work.

7.5.  Mesmerise Media reserves the right to immediately cancel the Contract if in its reasonable opinion the continuing involvement with the Client or the Service might be inappropriate in the circumstances (such as where the relationship has, in Mesmerise Media’ opinion, broken down) or is or might be damaging to the goodwill and reputation of Mesmerise Media, or where the nature of the project has materially changed or where the Client undergoes a change of control. In such circumstances, Mesmerise Media will be entitled to be paid for all of its work up until the date of termination and the Client shall receive ownership and rights in one of the concepts/solutions that have been presented to the Client prior to the date of cancellation.

7.6.  Where the Client cancels the contract in respect of only part of the brief the provisions of this clause shall be applied to the element that is cancelled and Mesmerise Media reserve the right to increase by up to 50% the estimated charges in respect of the remaining components of the original brief.

7.7.  The Client may suspend the provision of the Services for up to such period as is agreed by Mesmerise Media and in such circumstances, Mesmerise Media shall be entitled to invoice the Client for all fees due up to the end of the current stage of the work (or if there are no such stages up to the date of suspension) as set out in the Estimate and commenced by Mesmerise Media prior to the actual date of suspension as well as all disbursements, expenses and third party costs commissioned by Mesmerise Media which cannot be suspended or cancelled. If the suspension continues for more than 60 days, then Mesmerise Media have the right to cancel the Contract immediately and the provisions of clause 7.2 shall apply.

7.8.  After any period of suspension Mesmerise Media reserves the right to review and where it is appropriate and reasonable, increase any costs or fees (including third party fees where applicable) stated in the Estimate. In such circumstances previously agreed time schedules for the delivery of the Service will not apply and the Client and Mesmerise Media will agree on a new timetable for delivery.

8. Duty of Confidentiality

8.1. Each party will use its best endeavours to preserve the confidential information of the other and will comply with the other’s reasonable requirements in this regard. The Client recognises that Mesmerise Media’ methods of working and pricing structures are proprietary and are not generally in the public domain.

8.2. Each party shall comply with the obligations under Data Protection legislation relating to the use and storage of personal information.

8.3. Mesmerise Media rely upon the Client to inform it if any information or material supplied to Mesmerise Media in connection with the provision of the Service is particularly confidential and where appropriate, all such materials supplied to Mesmerise Media should be marked accordingly.

9. Client’s Responsibility for Implementation

9.1. Unless it is agreed as part of the Service full responsibility for implementation, display, electronic integration and compatibility, back up, production and manufacture of graphic designs or work incorporating graphic designs shall remain with the Client, although the Client acknowledges that failure to consult Mesmerise Media on implementation or its failure to implement any of Mesmerise Media’ recommendations may result in unsatisfactory implementation.

9.2. Aside from the usage rights (as to period and scope of use) which are negotiated to allow use of third party materials for the purpose of the contract, it is the responsibility of the Client and not Mesmerise Media to identify and obtain any required consents or permissions for the use of the materials.

9.3. The Client shall indemnify Mesmerise Media in respect of any claim howsoever arising under consumer protection or other legislation other than due to a breach by Mesmerise Media of its obligations under the contract.

10. Web Hosting

10.1. The Client warrants to Mesmerise Media that no statement, representation or information contained in the host web site: 10.1.1. is or is likely to be misleading or deceptive or to otherwise infringe the Fair-Trading Act 1986;

10.1.2. is at all defamatory, in breach of copyright, trademark, third party’s contractual or tortuous rights or other intellectual or industrial property right of any third party and Mesmerise Media; or

10.1.3. is otherwise on breach of any provision of any statute, regulation or rule of law.

10.2. The Client hereby indemnifies Mesmerise Media, its employees, servants, and agents against all losses or costs, including but not limited to legal costs, liabilities, claims or proceedings whatsoever arising as a result of any breach of the warranties set out in this clause.

10.3. Mesmerise Media may at any time and without notice to the Client cancel, reject or refuse to continue hosting any web sites without providing any reason for rejection or refusal at any time prior to, or after, hosting any web site. Mesmerise Media will not use this right unreasonably. The Client will bear any cancellation fees.

10.4. Mesmerise Media does not guarantee that the Services provided will be continuous or fault free. Mesmerise Media and its employees, servants, contractors or agents are not responsible for any losses or costs, liabilities, claims or proceedings whatsoever which the Client may suffer as a result of a defect, fault or temporary failure caused by Mesmerise Media or third party, including but not limited to the web hosting or Internet service provider.

10.5. Where Mesmerise Media is providing web hosting services it will sub contract this element to an appropriate provider and the terms of that subcontractor shall be incorporated into the agreement with the Client save that where there is a conflict with these terms then these terms shall prevail.

11. Limitation of Liability

11.1. None of the following provisions in this clause shall exclude or limit the liability of Mesmerise Media for fraud or fraudulent misrepresentation or for death or personal injury caused by the negligence of Mesmerise Media or its agent.

11.2. To the extent permitted by the law the liability of Mesmerise Media under the contract or in tort shall not exceed the greater of the sums paid by the Client under the contract or such sum as shall be recoverable (as distinct from the amount of cover) by Mesmerise Media in respect of any claim under any insurance policy effected by Mesmerise Media from time to time.

11.3. Mesmerise Media shall not be liable for any indirect or consequential loss, loss of sales, loss of profit, loss of production, loss of opportunity, loss or damage to goodwill, loss of reputation, any packaging or distribution cost, or losses/costs incurred as a result of changes to the work by the Client or a third party.

11.4. If the Service includes the provision of subcontractors by Mesmerise Media, then Mesmerise Media will advise on and procure the services of subcontractors who Mesmerise Media are satisfied are reasonably professionally competent.

11.5. Where an error is found in any delivered work (of whatever nature), which is the responsibility of Mesmerise Media then to the extent permitted by law, Mesmerise Media’ liability shall be limited to correcting or replacing the work at its discretion.

11.6. The Client accepts reasonable tolerances in relation to the Service including but not limited to those in respect of overs/ unders, colour and finish.

11.7. Mesmerise Media shall not be responsible for any errors apparent in artwork, copy or proofs that have been signed off by or on behalf of the Client.

11.8. Mesmerise Media will not be responsible for any colour discrepancy with design work created as part of the Service unless Mesmerise Media has itself signed off proofs in an appropriate form prior to printing.

11.9. Mesmerise Media shall not be responsible for any dissatisfaction attributable to the provision of incorrect information supplied by the Client or its agents and suppliers or any changes made by the Client and/or its agents or suppliers which affects the Service delivered by Mesmerise Media and Mesmerise Media should not be expected to question any such information or change that is provided to it.

11.10. Where Mesmerise Media acquire imagery or other third-party material for incorporation in work then it does so upon the terms of the provider and the Client shall be expected to make itself aware of and observe any limitations and restrictions. Usage (duration, geographical area and purpose) will be sufficient only for the brief upon which Mesmerise Media is engaged. Mesmerise Media shall not be responsible for any breach by the Client of the negotiated usage and indemnifies Mesmerise Media against all costs claims and liabilities if it is in breach.

12. Publicity and Examples

12.1. Once the Service has been made available to the public or has been disclosed to third parties in a non-confidential environment, then Mesmerise Media shall have a reasonable right of publicity (including the inclusion in any book or publication or collection of Mesmerise Media’ work) in respect of the work (and its use by the Client) created during the Service and the Client will provide Mesmerise Media with at least six samples of any printed work derived from the Service for the promotion of its business. This right is unlimited in duration.

12.2. Mesmerise Media shall have the right to identify itself in a reasonable manner as the provider of the Service to the Client. 12.3. The Client shall give reasonable attribution to Mesmerise Media as the creator of the work arising from the Service.

12.4. Mesmerise Media reserves the right where it considers it appropriate to require any reference or attribution to be removed from work provided as part of the Service.

12.5. Nothing in this clause shall compromise the moral rights of Mesmerise Media in respect of the work created by it as part of the Service.

13. Restrictions

13.1. The Client agrees that whilst Mesmerise Media is providing services to it and for a period of twelve months thereafter it shall not: –

13.1.1. approach (directly or indirectly) any of the employees, consultants or freelancers of Mesmerise Media regarding the possibility of them providing services directly to the Client independently of Mesmerise Media.

13.1.2. contract directly with any subcontractor or supplier of Mesmerise Media in a manner that might disrupt the relationship of Mesmerise Media with that subcontractor or supplier.

14. General

14.1. Where Mesmerise Media is engaged upon a retainer then these terms shall apply (as varied by the specific terms of the retainer) in respect of the services provided to the Client under the terms of the retainer.

14.2. Nothing in these terms are intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, appoint any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

14.3. Neither party shall be in breach of these terms nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

14.4. The contract with the Client constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

14.5. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in writing as part of the contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

14.6. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.7. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

14.8. If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

15. Legal

15.1. This agreement shall be subject to English law and under the exclusive jurisdiction of the English Courts.

15.2. To the extent permitted by law these terms shall govern the agreement between Mesmerise Media and the Client, and all other terms implied by law are excluded.

15.3. No one other than a party to this agreement shall have any right to enforce any of its terms.

15.4. The Client shall not, without the prior written consent of Mesmerise Media assign, transfer or subcontract any of its rights or obligations under these terms.

15.5. In the event of a dispute a senior representative from Mesmerise Media and the Client shall meet to see if it can be resolved and the parties shall consider (but shall not be obliged) to agree to submit to mediation or other alternative dispute resolution otherwise all disputes shall be resolved through the Courts.

15.6. Mesmerise Media is the trade name of Mesmerise Media Limited a company registered in England and Wales under company number 12499377