Terms and Conditions
Illustration and Creative Services
The following Terms and Conditions, in combination with the details specified in the agreed Quote, form a written agreement between the Illustrator and the Commissioner/Client.
Definitions
The Commissioner or Client is the person or entity requesting services from the Illustrator, regardless of payment.
The Illustrator is Dr Vicky Bowskill.
The Work and Artwork refers to the visual and/or written assets commissioned by the Commissioner/Client.
The Quote, in combination with these Terms and Conditions, is the written agreement between the Illustrator and the Commissioner, specifying the fee, licence terms and delivery schedule.
The Fee is the agreed amount payable for the Work.
Intellectual Property Rights, Ownership of Copyright and Licence conditions
1. The copyright in the Work, including all preparatory designs for the Work which includes but is not limited to sketches, graphic works, project development and production drawings, models, characters, prototypes and other matters (“Artwork”), commissioned by the Commissioner shall be retained by the Illustrator.
2. The Client and its licensors shall retain ownership of all Intellectual Property Rights in client-provided materials used for the development of the Work.
3. The Illustrator warrants that the receipt, use and onward supply of the Work by the Commissioner and its permitted sub-licensees, shall not infringe the rights, including any IPRs, of any rights of third parties to the extent that infringement results from copying.
4. The Commissioner shall indemnify the Illustrator in full against any sums awarded by a court against the Illustrator arising of or in connection with any claim brought against the Illustrator for infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the client-provided materials by the Illustrator.
5. The Commissioner is deemed to have accepted these terms and conditions on acceptance of a quote for Work.
6. The Commissioner or the Client (where the Commissioner is acting as an intermediary) is granted a licence solely as specified and for the usages set out in the Quote document.
7. For the avoidance of doubt, the Illustrator shall have the right to use the Work and Artwork for the purpose of self-promotion, unless both parties agree otherwise in writing.
8. The licence hereby granted is conditional upon the Illustrator having received payment in full of all monies due.
9. The licence hereby granted is personal to the Commissioner or the Client (where the Commissioner is acting as an intermediary) and the rights may not be assigned or sub-licensed to any third parties without the Illustrator's prior written consent.
10. The Commissioner accepts that the use of the Work and Artwork is restricted as specified in the Quote. Further use of the Work or Artwork is subject to an additional licence to be granted by the Illustrator. Both parties shall negotiate the terms of the additional licence in good faith.
11. The Work is not a ‘work made for hire’ under United States copyright law. Copyright and all associated intellectual property rights remain vested in the Illustrator unless expressly assigned in writing by the Illustrator.
Payment
12. Unless stated otherwise in the Quote, the Fee is payable in Pound Sterling, inclusive of all of Illustrator’s expenses and preparation time.
13. All fees due to the Illustrator shall be exclusive of any applicable Value Added Tax (“VAT”) or like tax (which shall be additional).
14. If and to the extent that VAT is payable the Illustrator will render to the Commissioner a VAT invoice.
15. The Commissioner shall pay all invoices within 30 days of the date of the invoice. The Illustrator reserves the right to charge interest at the annual rate of 8% above the Bank of England base rate for the time being, to accrue daily from the due date until payment is received.
Cancellation
16. If a commission is cancelled by the Commissioner, the Commissioner shall pay a cancellation fee as follows:
a. 50% of the agreed fee if the commission is cancelled within 1 calendar week of the agreed start date;
b. 75% of the agreed fee if the commission is cancelled after a first draft has been completed;
c. 100% of the agreed fee if the commission is cancelled after work has been completed but prior to final artwork being signed off;
d. If the commission is cancelled at an intermediate stage, a fair and reasonable amount on account of the Fee due under this Agreement commensurate with the Schedule performed to date of such cancellation.
e. In the event of cancellation, ownership of all rights granted under this Agreement shall revert to the Illustrator unless the Artwork is based on the Commissioner's visuals or otherwise agreed.
Delivery
17. The Illustrator shall use reasonable endeavours to deliver the relevant Artwork as digital files in accordance with the specifications to the Commissioner by the agreed date and shall notify the Commissioner of any anticipated delay in which case the Commissioner may (unless the delay is the fault of the Commissioner) ask the Illustrator to deliver the relevant Artwork as agreed in the Schedule or on a mutually agreed date – whatever is the later date. The Commissioner may cancel the commission without payment in the event of the Illustrator failing to meet the thereby agreed date.
18. The Illustrator shall not be liable for any consequential loss or damages arising from late delivery of the deliverables.
19. The Commissioner shall make an immediate objection upon delivery if the Artwork is not in accordance with the brief. If such objection is not received by the Illustrator within 21 days of delivery of Artwork it shall be conclusively presumed that the Artwork is acceptable.
Approval/Rejection
20. Should the Artwork fail to satisfy, the Commissioner may reject the Artwork upon payment of a rejection fee as follows:
a. 50% of the agreed fee if the Artwork is rejected at the first draft stage.
b. 75% of the agreed fee if the commission is rejected following amendments.
In the event of rejection, all rights licensed or otherwise granted to the Commissioner under this Agreement shall revert to the Illustrator except to the extent that the Artwork is based on the Commissioner's visuals or as otherwise agreed.
Changes
21. If the Commissioner changes the brief and requires subsequent changes, additions or variations, the Illustrator may require additional payment. The Illustrator may refuse to carry out changes, additions or variations which substantially change the nature of the commission.
Guarantees
22. Except where Artwork is based on reference material or visuals supplied by the Commissioner or where otherwise agreed, the Illustrator guarantees that the Artwork is original and does not infringe any existing copyright.
23. The Commissioner guarantees that any necessary permissions have been obtained for the use of reference material or visuals supplied by the Commissioner or the Client and undertakes to keep the Illustrator fully and effectively indemnified against any and all claims and expenses including reasonable legal fees arising from the Illustrator's use of any materials provided by the Commissioner or the Client.
Source files
24. Deliverables do not include original source files but only files in the format as specified in the Work definition. It shall be at the Illustrator’s discretion to make original source files available to the Commissioner on request for a mutually agreed fee. Usage of source files shall be governed by the same terms that govern usage of the Work by the Commissioner under this agreement.
Original Artwork
25. The original Artwork shall not be intentionally destroyed, altered, retouched, modified or changed in any way whatsoever without the written consent of the illustrator.
26. Where hard copy original Artworks are supplied, the Commissioner shall return all Artwork to the Illustrator not later than 3 months after delivery in undamaged, unaltered and unretouched condition. The Commissioner may make and retain copies to enable it to exploit the rights granted with the Artwork.
27. If the original Artwork is lost or damaged at any time whilst in the Commissioner’s custody the Commissioner shall pay compensation to the Illustrator for the loss/damage of the Artwork at a rate to be agreed in good faith between the parties.
Credits/Moral Rights
28. The Illustrator hereby asserts their moral right to be identified as the author of the Work. The Commissioner shall ensure the Illustrator is credited in any use of the Work.
Samples
29. Unless otherwise agreed, the Illustrator shall be entitled to receive not less than four printed copies of the Work if applicable.
Notices
30. All notices shall be sent to the Illustrator and to the Commissioner at the email address stated in the Quote. Each party shall give written notification of any change of address or email address to the other party prior to the date of such change.
Limitation of Liability
31. The Illustrator’s total aggregate liability arising under or in connection with the commission, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the total Fee paid by the Commissioner under the relevant Quote.
32. Neither party shall be liable to the other for any indirect, consequential, incidental, special, punitive or exemplary damages, including but not limited to loss of profits, loss of opportunity, loss of business or reputational damage arising out of or in connection with this Agreement.
Dispute Resolution
33. In the event of any dispute between the parties, both parties will seek in good faith to resolve the dispute amicably by negotiation.
34. Either party may give the other a written notice that it wishes to refer a dispute to formal mediation (“Mediation Notice”). If within two weeks of service of a Mediation Notice the dispute has not been resolved, the parties shall then try to settle the dispute by mediation in accordance with the Model Mediation Procedure of the Centre for Effective Dispute Resolution. If that fails, or after either party has made all reasonable efforts to follow that procedure, either party may commence proceedings in a court of competent jurisdiction. Either party may at any time seek injunctive relief from a court of competent jurisdiction.
Governing Law
35. Any dispute arising out of or in connection with this Agreement shall be governed exclusively by the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales.
36. These Terms and Conditions may not be varied except by agreement in writing signed by both parties.