Briefing
Unless your order is free interpretation of a verbal brief, you must provide a typed brief clearly stating your order, including style and subject reference, to convey your wishes without doubt.
Magic Pencil is to be given creative freedom within the context of the commission. Should the client wish to make changes during or after production, the additional costs involved are to be borne by the client
Preliminary work
All work carried out, whether experimentally or otherwise, at the clients request shall be chargeable.
Proofs
Proofs of all work may be submitted for Client’s approval and Magic Pencil shall incur no liability for any errors not corrected by the Client in proofs so submitted. Additional charges shall be made for any additional proofs that are required because of alterations required by the Client. When style, type or layout is left to Magic Pencil discretion, any subsequent changes to such style, type or layout required by the Client shall be subject to additional charges on a time and materials basis.
Copy
Where any additional work of whatever nature is necessary as a result of copy supplied by a Client not being clear and/or legible, Magic Pencil shall be entitled to make additional charges on a time and materials basis to cover such additional work.
Ownership of Copyright/Copyright Licence
Unless negotiated and agreed in writing, the copyright of general artwork, commissioned artwork and illustrations and anything else whatsoever prepared, developed or created by Magic Pencil shall vest in, belong to and shall be retained Magic Pencil.
The Client or the Client's customer (where the Client is acting as an intermediary) is granted a licence to reproduce the artwork solely for the purposes set out in these terms and conditions. If the acceptance of commission is silent, the Client or the Client's customer is granted an exclusive licence for one time use in the United Kingdom only.
During the currency of the licence, Magic Pencil shall notify the Client of any proposed exploitation of the artwork for purposes other than self-promotion and the Client shall have the right to make reasonable objections if such exploitation is likely to be detrimental to the business of the Client or the Client's customer.
Where use of the artwork is restricted, Magic Pencil will nominally grant the Client or the Client's customer a licence for use for other purposes subject to payment of a further fee in line with current licensing rates to be mutually agreed between Magic Pencil and Client.
The licence hereby granted to use the artwork is contingent upon Magic Pencil having received payment in full of all monies due to her/him and no reproduction or publication rights are granted unless and until all sums due under this Agreement have been paid.
The licence hereby granted is personal to the Client or the Client's customer (where the Client is acting as an intermediary) and the rights may not be assigned or sub-licensed to third parties without Magic Pencil's consent.
Magic Pencil may use any artwork or printing produced by itself for the purposes of promoting itself.
Payment
Payment falls due upon delivery of the designs. Where designs are delivered in installments, part-payment equivalent to at least half the total payment falls due upon receipt of the first installment.
For invoices not settled within the agreed credit terms Magic Pencil reserves the right to charge interest at a rate of 2% per month and an administration fee to cover its debt recovery costs payable on any balance unpaid after 28 days of the date of invoice.
Magic Pencil reserves the right to charge the amount of any value added tax payable whether or not included on the quotation/estimate or invoice.
Where the designs are used again or on a larger scale than originally planned, the client shall be required to pay for their additional use.
Data
Where Magic Pencil has provided the client with files/documents and data, these may only be altered with Magic Pencils consent.
The risk cost of transporting files and data online or by email or removable storage (disk, CD, DVD) are to be borne by the client.
Magic Pencil accepts no liability for damage files or systems and data that result from the opening or importing of data onto the client’s systems.
Cancellation
If a commission is cancelled by the Client, the Client shall pay a cancellation fee as follows:
25% of the agreed fee if the commission is cancelled before delivery of roughs;
33% of the agreed fee if the commission is cancelled at the rough stage:
100% of the agreed fee if the commission is cancelled on the delivery of artwork;
Pro rata if the commission is cancelled at an intermediate stage.
In the event of cancellation, ownership of all rights granted under these terms and conditions shall revert to Magic Pencil unless the artwork is based on the Client's visual or otherwise agreed.
Delivery
Magic Pencil shall use her/his best endeavours to deliver the artwork to the Client by the agreed date and shall notify the Client of any anticipated delay at the first opportunity in which case the Client may (unless the delay is the fault of the Client) make time of the essence and cancel the commission without payment in the event of Magic Pencil falling to meet the agreed date.
Magic Pencil SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL LOSS OR DAMAGES ARISING FROM LATE DELIVERY OF THE ARTWORK.
The Client shall make an immediate objection upon delivery if the artwork is not in accordance with the brief. If such objection is not received in writing by Magic Pencil within 7 days of delivery of artwork, it shall be conclusively presumed that the artwork is acceptable.
Approval/Rejection
Should the artwork fail to satisfy, the Client may reject the artwork upon payment of a rejection fee as follows:
25% of the agreed fee if the artwork is rejected at the rough stage.
50% of the agreed fee if the artwork is rejected on delivery.
In the event of rejection, ownership of all rights granted under this Agreement shall revert to Magic Pencil unless the artwork is based on the Client's visual or otherwise agreed.
Changes
If the Client changes the brief and requires subsequent changes, additions or variations, Magic Pencil may require additional consideration for such work. Magic Pencil may refuse to carry out changes, additions or variations, which substantially change the nature of the commission.
Liability
Magic Pencil gives no warranties or guarantees or makes any representations as to the merchantability or fitness for a particular purpose of any completed work the subject of a Client's order and all other warranties, conditions, guarantees or representations, whether express or implied, oral or in writing, except as expressly stated in these terms and conditions are hereby excluded.
Magic Pencil shall not be liable for any loss arising from delay in transit not caused by Magic Pencil. Further, Magic Pencil shall not be liable for any indirect, special or consequential damages, loss of profits, economic loss, loss of goodwill or loss of anticipated savings or loss of data. The total aggregate liability of Magic Pencil in respect of any and all causes of action arising out of or in connection with the Client's order and Magic Pencils performance of services pursuant to such order (whether for breach of contract, strict liability, tort (including, without limitation, negligence), misrepresentation or otherwise) shall be limited to the sums paid to Magic Pencil by the Client's in respect of the order pursuant to which liability has arisen. Nothing in these terms and conditions shall be construed so as to limit or exclude liability which cannot, pursuant to English Law, be excluded or limited including for death or personal injury or liability in respect of fraud or fraudulent misrepresentation.
Warranties
Except where artwork is based on reference material or visuals supplied by the Client or where otherwise agreed, Magic Pencil warrants that the artwork is original and does not infringe any existing copyright and further warrants that she/he has not used the artwork elsewhere.
The client shall be responsible for obtaining all necessary authorities and consents to reproduce pictures, artwork, reference material, visuals photographs, copyright text and/or any other reproducible materials ("Materials") before instructing Magic Pencil to reproduce the same. The customer shall indemnify and hold Magic Pencil and its representatives harmless against all claims, demands, actions, costs, expenses (including but not limited to legal costs and disbursements), losses and damages arising from or suffered or incurred by reason of any claim (including but not limited to the defence of such claim) that the reproduction of the Materials by Magic Pencil infringes the intellectual property or other rights of any third party or misuses the confidential information of a third party
Ownership of Artwork
Magic Pencil shall retain ownership of all artwork (including roughs and other materials) delivered to the Client.
Magic Pencil's original artwork shall not be intentionally destroyed, damaged, altered, retouched, modified or changed in any way whatsoever without the written consent of Magic Pencil.
The Client shall return all artwork to Magic Pencil not later than 3 months after delivery in undamaged, unaltered and unretouched condition although the Client may make and retain transparencies to enable it to exploit the rights granted with the artwork.
If the artwork is lost or damaged at any time whilst in the Client’s custody (which shall mean anytime between delivery of artwork to the Client and its safe return to Magic Pencil the Client shall pay compensation to Magic Pencil for the loss/damage of the artwork at a rate to be agreed or, in default of agreement, decided by the Ethics Committee of the Association of Illustrators.
Credits/Moral Rights
The Client shall ensure Magic Pencil is credited in any editorial use of the artwork. Credits for non-editorial use are not required unless agreed in writing.
Samples
Unless otherwise agreed, Magic Pencil shall be entitled to receive not less than four proofs or printed copies of the work without charge.
Notices
All notices shall be sent to Magic Pencil and to the Client. Each party shall give written notification of any change of address to the other party before the date of such change.
Governing Law
These terms and conditions and all other express terms of the contract with customers shall be governed and construed in accordance with English law and may not be varied except by agreement in writing. The parties hereto submit that English Courts shall have jurisdiction in relation to any matters arising in connection with any contract between Magic Pencil and the customer into which these terms are incorporated.
Acceptance
I the Client, having read and understood the contents, agrees with the terms and conditions as laid out within this document.
Please fax back to 0844 870 0759
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