FULL TERMS OF BUSINESS FOR AMRIT BIRDI & CO



These terms of business, as referred to in the Engagement Offer, are made between: (1) Birdi Creative Limited (trading as Amrit Birdi & Co) incorporated and registered in England with company number 08598425 whose registered office is at 86-90 Paul Street, London EC2A 4NE (the Illustrator) and (2) _______________ (the Client), and the relationship between the parties shall be governed by the following agreed terms:




1. FORM AND DELIVERY OF THE WORK


1.1 The Illustrator agrees to produce the Work and deliver it to the Client in accordance with the details set out in the Engagement Offer and these terms of business, using reasonable endeavours to ensure that any electronic copy of the Work does not contain any virus or other material likely to cause technological harm.


1.2 Subject to clause 25, if the Illustrator fails to deliver the Work in accordance with clause 1.1, the Client may serve notice on the Illustrator to do so within 14 days. If the Illustrator fails to do so without reasonable cause within the 14-day notice period, the Client may then (at its sole discretion) terminate this agreement by written notice with immediate effect, and engage the services of a third party of its choice to complete the Work, having notified the Illustrator of its intention to do so. In this event, the Client shall not be obliged to pay any of the advances which have not yet become due in accordance with clause 5.1, save that the Client shall account to the Illustrator for a proportion of the advances which is (in the Illustrator’s reasonable judgment) proportionate to the Illustrator's final contribution to the finished work.




2. EDITING AND APPROVAL OF THE WORK


2.1 The Client must notify the Illustrator within two working days of delivery of the Work (unless otherwise agreed) if it requires the Illustrator to make changes to the Work to ensure that it is of a reasonably competent standard and complies with the terms of this agreement (including all warranties) and if the Illustrator cannot, or unreasonably refuses to, make such changes within a reasonable time, the Client shall have the right to engage a third party at the Client's cost to make those changes to the Work or alternatively, if it so chooses, to terminate this agreement. If the Client chooses to terminate pursuant to this clause, the Illustrator will be entitled to keep all payments already received.


2.2 If the Client does not notify the Illustrator pursuant to clause 2.1 the Client will be deemed to have accepted the Work (Acceptance) and all outstanding advances will become payable.


2.3 The Illustrator agrees that if, after Acceptance of the Work, the Client wishes to make changes to the Work, the Client shall be entitled to make such further changes and/or to require the Illustrator to do so at an additional cost to be agreed between the parties.




3. PROOF CORRECTIONS


3.1 The Illustrator shall provide proofs of the Work to the Client in accordance with the Engagement Offer, upon which the Client shall within three days (unless otherwise agreed) review them and provide feedback notes for the illustrator regarding minor changes the proofs. If feedback is not provided, the Illustrator will consider the proofs approved (Proof Approval). If it subsequently transpires that corrections need to be made after Proof Approval, these shall be made at the Client’s cost. Such costs shall be invoiced to the Client and paid within 14 days of invoice.


3.2 In this clause, a correction means a change which does not accord with the Client’s original brief in the reasonable opinion of the Illustrator.




4. CHANGE OF BRIEF


4.1 The Client shall be entitled to change its brief to the Illustrator at any time before the Effective Date.


4.2 If the Client, on or after the Effective Date, wishes to change its brief to the Illustrator, the Illustrator shall be entitled to accept or reject such changes in its sole discretion, and if the Illustrator accepts such changes it may charge an additional sum or sums.




5. PAYMENTS


5.1 The Client shall pay to the Illustrator the Advances referred to in the Engagement Offer, and any other sums payable by the Client under this agreement, all of which shall be non-returnable.


5.2 No work shall be delivered until relevant advance(s) and a signed agreement are received by the Illustrator. However, receipt of advance (a) will be considered acceptance by the Client of our full terms of business (which once again can be found here: www.amritbirdi.co.uk/tob/)


5.3 If applicable, either on the Effective Date or a subsequent date, the Client shall pay to the Illustrator royalties in accordance with a royalty-fee agreement containing such terms as to be agreed between the parties.


5.4 All sums due to the Illustrator under this agreement are subject to 20% VAT, which we are obliged to collect by law.


5.5 All sums payable under this agreement shall be paid subject to deductions and withholdings required by law.


5.6 All sums payable under this agreement shall be paid in sterling to the credit of a bank account to be designated in writing by the Illustrator.


5.7 If the Client fails to make any payment due to the Illustrator under this agreement by the due date for payment, then, without limiting the Illustrator's remedies under clause 13, the Client shall pay interest on the overdue amount at the rate of 8% per annum above Barclay’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.


5.8 The provisions of this clause shall remain in effect notwithstanding termination or expiry of this agreement until the settlement of all subsisting claims by the Illustrator.




6. LICENCE AND RESERVATION OF RIGHTS IN THE WORK


6.1 The Illustrator retains all copyright and other rights in the Work and all versions of it (including proofs) throughout the world and, subject to clause 6.3, hereby grants to the Client the exclusive right to publish and distribute the Work within the scope of the Works intended use, the detail of which is described within the Engagement email to which this document was attached.


6.2 The Client shall not be entitled to materially change alter amend or manipulate the Work without the written consent of the Illustrator, which may be given or withheld in the Illustrator’s sole discretion.


6.3 The Illustrator reserves the following rights in the Work but agrees not to exercise them in such a way as to adversely affect the Client's ability to take the full benefit of this agreement:
(a) reprographic rights in the Territory, other than those which subsist in the typographical arrangement of the Work as published by the Client;
(b) public lending rights arising under the Public Lending Right Act 1979, as amended from time to time, and any similar rights arising in any part of the Territory.


6.4 The Illustrator agrees not to license any third parties to supply the Work to, or in, any country within the Territory.


6.5 The Client shall not without the Illustrator's consent (which shall not be unreasonably withheld or delayed) sell copies of the Work which it knows are to be given away free of charge with goods or services (premium sales).


6.6 Nothing in this agreement shall impose any obligation on the Client to publish, promote or sell the Work. If the Client has not published the Work within 24 months of delivery of the completed Work, all rights licensed to the Client under clause 6.1 shall automatically revert to the Illustrator (who will be free to license those rights elsewhere at the Illustrator's sole discretion) and the Client will not be entitled to repayment of any advances already paid to the Illustrator pursuant to clause 4.




7. PRODUCTION AND PROMOTION


7.1 The Illustrator shall have no obligation to produce or promote the Work.


7.2 The Client shall credit the name of the Illustrator and/or Amrit Birdi & Co within the Work in a place or position to be agreed between the parties, provided that the Illustrator may instruct the Client at any time to remove such credit with immediate effect.


7.3 The Client shall provide to the Illustrator free of charge (including carriage costs) 10 copies of the first published edition of the Work within one month of publication. The Illustrator will be entitled to buy further copies of the first edition and all subsequent editions at standard trade discounts and terms.




8. ILLUSTRATOR'S WARRANTIES


The Illustrator warrants insofar as he is aware that:


(a) the Work will be the Illustrator's original work and will not be copied wholly or substantially from any other work or material or any other source;


(b) the Illustrator will be the sole creator of the Work and the legal and beneficial owner of all rights in the Work;


(c) the Illustrator is a qualifying person under section 154 of the Copyright, Designs and Patents Act 1988;


(d) no previous version of the Work has previously been published in any part of the Territory;


(e) the rights granted by this agreement are free from any security interest, option, mortgage, charge or lien; and


(f) the exploitation of the rights granted by this agreement has not infringed, and will not infringe, the rights of any third party.




9. INDEMNITY


9.1 The Client shall indemnify and hold the Illustrator harmless against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Illustrator arising out of or in connection with any breach of this agreement.


9.2 This indemnity shall not apply to the extent that the Illustrator has been negligent or at fault or to the extent that a claim under it results from the Illustrator’s wilful misconduct.


9.3 If a payment due from the Client under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Illustrator shall be entitled to receive from the Client such amounts as shall ensure that the net receipt, after tax, to the Illustrator in respect of the payment is the same as it would have been were the payment not subject to tax.


9.4 The Client shall pay to the Illustrator interest on overdue sums under this clause at 8% above the base rate of the Bank of England from time to time.





10.1 Each published copy of the Work in any format shall carry on its first page (or, in the case of a sound recording, at the beginning of the recording and, if it is supplied in tangible form, on any packaging it may be supplied in a copyright notice in the following form:


Illustrations © Amrit Birdi & Co. [YEAR OF FIRST PUBLICATION]


10.2 The Client shall have a duty to notify the Illustrator of any infringement or suspected infringement of the Copyright.




11. ASSIGNMENT AND OTHER DEALINGS


11.1 The Client shall not assign, transfer, mortgage, charge, sublicense, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.


11.2 The Illustrator may assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.




12. COMMENCEMENT AND DURATION


This agreement shall commence on the Effective Date and continue until terminated in accordance with this agreement.


 




13. TERMINATION


13.1 The Client may terminate this agreement with not less than seven days’ written notice, provided that:


13.1.1 the seventh day of the notice-period shall be deemed as the Termination Date pursuant to this clause 13.1;


13.1.2 a kill-fee of 20% in addition to the total sum of the advances referred to in clause 5.1 shall apply and become payable by no later than the Termination Date;


13.1.3 all payments made by the Client to the Illustrator as at the Termination Date shall not be refundable or repayable to the Client;
13.1.4 this clause shall not apply to any royalty-fee agreement.


13.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of this agreement.




14. CONSEQUENCES OF TERMINATION


14.1 On expiry or termination of this agreement for any reason and subject to any express provisions set out elsewhere in this agreement:


(a) all outstanding sums payable by the Client to the Illustrator shall become due and payable immediately, without any right of set-off in respect of monies owed or allegedly owed by the Illustrator to the Client under the terms of this agreement;


(b) all licences granted by this agreement shall cease to have effect, save that the Illustrator shall be obliged to honour the terms of any continuing sub-licences for the remaining duration of their terms;


(c) the Client shall cease to make any use of the Copyright; and


(d) the Illustrator shall return promptly to the Client at the Illustrator's expense all records and copies of any information of a confidential nature communicated to it by the Client, either preparatory to, or as a result of, this agreement, to the extent such material remains confidential.


14.2 The expiry or termination of this agreement for any reason shall not affect any provision of this agreement which is expressed to survive or operate in the event of expiry or termination (including clause 8) and shall be without prejudice to the provisions of this clause 14 and to any rights of either party which may have accrued by, at or up to the date of such expiry or termination.




15. CONFIDENTIALITY


15.1 The Illustrator undertakes that he shall not at any time during this agreement, and for a period of one years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the Client except as permitted by clause 15.2


15.2 The Illustrator may disclose the Client's confidential information:
(a) to his representatives or advisers who need to know such information for the purposes of exercising the Illustrator's rights or ensuring that the Illustrator's obligations under or in connection with this agreement are fulfilled. The Illustrator shall ensure that any representatives or advisers to whom he discloses the Client's confidential information comply with terms similar to those of this clause 15; and
(b) as may be required by law, court order or any governmental or regulatory authority.


15.3 The Illustrator shall not use the Client's confidential information for any purpose other than to exercise his rights or perform his obligations under or in connection with this agreement.




16. SET-OFF


The Illustrator may at any time without notice to the Client set off any liability of the Illustrator to the Client against any liability of the Client to the Illustrator, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this agreement. If the liabilities to be set-off are expressed in different currencies, the Client may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Illustrator of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.




17. FURTHER ASSURANCE


The Client shall, and shall use all reasonable endeavours to procure that any necessary third party shall, execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this agreement.




18. REMEDIES


The Illustrator acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement by the Client. Accordingly, the Illustrator shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this agreement.




19. WAIVER


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 preclude or restrict the further exercise of that or any other right or remedy. 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.




20. ENTIRE AGREEMENT


20.1 This agreement 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.


20.2 The Client 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.




21. VARIATION


No variation of this agreement shall be effective unless it is in writing (or their authorised representatives).




22. SEVERANCE


22.1 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.


22.2 If one party gives notice to the other of the possibility that 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.




23. COUNTERPARTS


23.1 This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.


23.2 Transmission of an executed counterpart of this agreement (or at least the signature page of a counterpart of this agreement) by electronic means shall take effect as delivery of an executed counterpart of this agreement.


23.3 No counterpart shall be effective until each party has executed and delivered at least one counterpart.




24. THIRD PARTY RIGHTS


No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.




25. NO PARTNERSHIP OR AGENCY


25.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.


25.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.




26. FORCE MAJEURE


Neither party shall be in breach of this agreement 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 (or such other period as may be agreed in writing). If the period of delay or non-performance continues for 6 months, the party not affected may terminate this agreement by giving 7 calendar days' written notice to the affected party.




27. GOVERNING LAW AND JURISDICTION


27.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.


27.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.




28. INTERPRETATION


The following definitions and rules of interpretation apply in this agreement.


28.1 Definitions:


Copyright: all copyright and rights in the nature of copyright subsisting in the Work in any part of the world to which the Illustrator is, or may become, entitled.


Effective Date: the date of acceptance of the terms contained in the Engagement Offer, provided that these Terms of Business have been supplied to the Client. Signing of these Terms of Business by the Client shall constitute acceptance of the terms contained in the Engagement Offer (as well as in these Terms of Business).


Engagement Offer: the written correspondence from the Illustrator to the Client headed “Illustration Services – Engagement Offer” to which this document was attached.


Payment Dates: 30 June and 31 December each calendar year.


Territory: worldwide.


VAT: value added tax.


Work: the principal terms of the illustration services to be provided by the Illustrator to the Client, as particularised in the Engagement Offer.


28.2 Clause and Schedule headings shall not affect the interpretation of this agreement.


28.3 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.


28.4 References to clauses and Schedules are to the clauses and Schedules of this agreement.


28.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.


28.6 A reference to any party includes that party's personal representatives, successors and permitted assigns.


28.7 A reference to a statute, statutory provision or subordinated legislation is a reference to it as it is in force from time to time, provided that, as between the parties, no such amendment or re-enactment shall apply for the purposes of this agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party. This proviso does not, however, apply in relation to taxation.


28.8 A reference to a statute or statutory provision shall include any subordinate legislation made from time to time under that statute or statutory provision.


28.9 A reference to writing or written includes email.


28.10 A reference to this agreement includes any document referred to within it.


28.11 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.


This agreement has been entered into on the Effective Date.



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