Terms & Conditions

Conditions of your use of this Website

These terms and conditions govern your use of the Lush New Media website. Please read through the Terms. If you do not agree with the Terms, do not use this Website. If you do use the Website, your conduct indicates that you agree to be bound by the Terms.

Except as stated below, the contents of this Website may not be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means without the prior express written permission of Lush New Media. You may not distribute, display or copy any of the contents of the pages contained in this Website to third parties including, but not limited to "caching" any material on this Website for access by third parties and "mirroring" any material on this Website. You may print or download to disk the contents of an individual page of this Website for the purpose of private and personal non-commercial use. You may also permit your computer to make an electronically stored, transient copy of the content in this Website for the purpose of viewing it while connected to the Internet only. However, you may only make one copy of any content.

Exclusion of Lush New Media’s liability

The information contained in the material in this Website is only for information purposes. The material on this Website does not constitute advice and you should not rely on any material in this Website to make (or refrain from making) any decision or take (or refrain from taking) any action. Lush New Media does not make any warranty or representation as to the accuracy or fitness for purpose of any material on this Website or the reliability of the access to this Website. In no event do Lush New Media accept liability of any description, including liability for negligence (except for personal injury or death), for any damages or losses (including, without limitation, loss of business, revenue, profits, or consequential loss) whatsoever resulting from use of or inability to use this Website. Lush New Media makes no warranty that this Website (or website’s which are linked to this Website) is free from computer viruses or any other malicious or impairing computer program. The pages contained in this Website may contain technical inaccuracies and typographical errors. The information in these pages may be updated from time to time and may at times be out of date. Lush New Media accept no responsibility for keeping the information in these pages up to date or liability for any failure to do so.

Data Protection and Privacy

Lush New Media takes the security and privacy of the contacts about which it holds personal information extremely seriously. The company follows strict security procedures in the storage and disclosure of personal information given, in order to prevent unauthorized access.
Any details which you provide to Lush New Media are held and processed in accordance with the Data Protection Act 1998.

Lush New Media does not sell, rent or deal in the personal information it holds. Information may, in the ordinary course of business, move between different companies such as Lush New Media’s contractors.

Law governing the Terms

Use of this Website and these Terms shall be subject only to the laws of England and Wales which shall exclusively govern the interpretation, application and effect of all the above permissions, exclusions, licences and conditions of use.

Jurisdiction

The Courts of England and Wales shall have exclusive jurisdiction over all claims or disputes arising in relation to, out of or in connection with this Website and its use and these Terms. Where national regulatory authorities have jurisdiction over the contents of this Website, Lush New Media has attempted to ensure compliance with the requirements of such regulatory body. However, some of the information in the pages contained in this Website is not to be accessed from certain jurisdictions and no representation or warranty is made as to whether the information available in this Website complies with the regulatory regime of countries from which the pages in this Website should not be accessed. If you have any queries then please contact Lush New Media.

Unless otherwise specified the copyright in the contents of all the pages in this Website are owned or licensed to Lush New Media or the artists advertising within. Unless otherwise specified, the authors of the literary and artistic works in the pages in this Website have asserted their moral right pursuant to Section 77 of the Copyright Designs and Patents Act 1988 to be identified as the author of those works.

 

Contractual Terms and Conditions (updated January 2010)

The placing of an order by a client and the acceptance of that order by Lush New Media brings into being a contract on Lush New Media terms and conditions as detailed in the following paragraphs.

Quotations and costs: Lush New Media quotes are valid for 30 days. Any advance payments are due immediately, with the remainder due within 21 days from the date of the Lush New Media invoice. My costs exclude any outside costs incurred (for example: web hosting, domain name registration, stock imagery, travel, photography, delivery and couriers etc. but Lush New Media will endeavour to provide estimates of those costs in advance, this cannot be guaranteed however and some outside costs may increase from the time Lush New Media supplied the quote, all additional increases [or decreases] in the price will be charged to the client).

Lush New Media’s current hourly rate is £40.00 per hour. Any work outside an agreed list of deliverables, in the absence of a quote or due to author’s changes is charged at this rate (see point 4 below).

Lush New Media will provide you with an estimated timescale for progress and completion of work and will use reasonable endeavours to meet those timescales (as long as you perform your obligations promptly). Any quoted dates or times are best estimates only and aren’t guaranteed to be met.

1. Estimates are based on Lush New Media’s current costs of production and, unless otherwise agreed, are subject to amendment on or at any time after acceptance to meet any rise or fall in such costs. For new clients, Lush New Media reserve the right to ask for at least a 25% deposit (up to 50% deposit depending on the size of the job) prior to the job commencing. This is only applicable for the first project, further work would be quoted and may or may not require a deposit, this is left to Lush New Media’s jurisdiction.

2. All quotes and estimates may or may not include any VAT due, this will be indicated within the quote.

3. All work carried out, whether experimentally or otherwise, at client’s request shall be charged at Lush New Media’s hourly rate or for the set price as quoted, any order to proceed with work constitutes acceptance of Lush New Media’s set price as quoted or hourly rate.

4. Additional costs: A charge may be made to cover any additional work involved where copy supplied is not clear and legible or supplied as paper original requiring keyboard input. All additional work undertaken by Lush New Media on behalf of a client is chargeable at either the hourly rate or at the set price as quoted.

a) All estimates / quotes for work to be undertaken by Lush New Media is done in a 2 stage process: Design and Build; all Design work will result in a visual (usually PDF) and to proceed to the Build stage (for web related work) or to the printing stage (for printed work) will require a written approval, usually an approval by email will suffice. Approval of visuals to proceed to the build / print stage assumes that the visuals are correct, any mistakes / errors made by Lush New Media will be completed free of charge. 1 set of additional amends by the client is allowed within the quote but any additional corrections / amendments / designs / additional pages etc. requested by the client will be charged at Lush New Media’s hourly rate.

b) Work that does not require a final product/design/website etc. such as Search Engine Optimisation or sourcing/administering hosting etc. will be completed as per Lush New Media’s quote. Any additional work will be charged at Lush New Media’s hourly rate.

c) Website Updates & Site Maintenance: These are charged at £40.00 per hour (or part thereof). If you want to introduce new material in the form of extra pages, additional functions, or more information than is already available on your site, this must be paid for as a new job.

5. Proofs of all work may be submitted for client’s approval and Lush New Media shall incur no liability for any errors not corrected by the proofs. Any changes necessitated thereby shall be charged extra. When style, type or layout is left to Lush New Media’s judgment, changes therefore made by the client shall be charged extra. It is the client’s prerogative to ensure all work carried out is approved for correct content inc. grammar, spelling, and technical content. Colour match proofs are available at all stages of pre-press / pre-‘going-live’ (web) at the request of the client.

6. a) Delivery of work shall be accepted when tendered and there upon or, if earlier, on notification that the work has been completed the ownership shall pass and payment shall become due.

b) Unless otherwise specified the price quoted is for delivery of the work to the client’s address as set out in the estimate. A charge may be made to cover any extra costs involved for delivery to a different address.

c) Should expedited delivery be agreed an extra may be charged to cover any overtime or any other additional costs involved.

d) Should work be suspended at the request of or delayed through any default of the client for a period of 30 days the designer shall be then entitled to payment for work already carried out, materials specially ordered and other additional costs including storage.

If payment is not made within the specified terms of the invoice Lush New Media will exercise its right to claim a daily (or part there of) charge to cover the overdraft usage fee and all other costs incurred at present set at £10 per day (as of January 2010), minimum £25 charge, until either payment is completed and/or invoiced for the said charge. Lush New Media may also claim any costs incurred in recovering monies owing (see point 13 below).

7. Every endeavour will be made to deliver the correct quantity ordered, but estimates are conditional upon margins of 5 per cent for work in one colour only and 10 per cent for other work.

8. Claims Advice of damage, delay or partial loss of goods in transit or of non-delivery must be given in writing to Lush New Media and the carrier within three clear days of delivery (or, in the case of non-delivery, within 28 days of dispatch of the goods) and any claim in respect thereof must be made in writing to Lush New Media and the carrier within seven clear days of delivery (or, in the case of non-delivery, within 42 days of dispatch). All other claims must be made in writing to Lush New Media within 28 days of delivery. Lush New Media shall not be liable in respect of any claim unless the aforementioned requirements have been compiled with except in any particular case where the client proves that (1) was not possible to comply with the requirements and (2) advice (where required) was given and the claim made as soon as reasonably possible.

9. Lush New Media shall not be liable for any loss to the client arising from delay in transit not caused by Lush New Media. Internet designs are completed and published at the risk of the client and the proprietor cannot be held responsible for third party costs incurred by the content of such designs. It is the clients responsibility to ensure the content is in keeping with English laws inc. copyright, criminal law, patents, trademarks and any other authority legislation affected by the content of the web site. Lush New Media reserves the right to terminate at any time a contract to design, print, publish any material felt to be in contradiction of any of these laws (see point 13).

10. Standing material a) Metal, film, glass, digital media and other materials owned by Lush New Media and used by him/her in the production of type, plates, moulds, stereotypes, electrotypes, film-setting, negatives, positives and the like shall remain Lush New Media’s exclusive property. Such items when supplied by the client shall remain the client’s property.

b) type may be distributed and lithographic, photogravure or other work effaced immediately after the order is executed unless written arrangements are made to the contrary. In the latter event, rent may be charged.

11. Client’s property a) except in the case of a client who is not contracting in the course of a business nor holding himself out as doing so, client’s property and all property supplied to the designer by or on behalf of the client shall while it is in possession of the designer or in transit to or from the client be deemed to be at client’s risk unless otherwise agreed and the client should insure accordingly.

b) Lush New Media shall be entitled to make a reasonable charge for the storage of any client’s property left with Lush New Media before receipt of the order or after notification to the client of completion of the work. It is the clients responsibility to ensure that in the case of web names and hosting the renewal payments are made within the contract period. A charge may be payable for data transfer to the client or an appointed agent out side of the original cost of design, ie: for - archive retrieval, CD burn, and transfer of scripted elements to another company’s server.

12. Materials supplied by the client a) Lush New Media may reject any paper, plates, media storage, photographs or other materials supplied or specified by the client which appears to him to be unsuitable. Additional cost incurred if materials are found to be unsuitable during production may be charged except that if the whole or any part of such additional cost could have been avoided but for unreasonable delay by Lush New Media in ascertaining the unsuitability of the materials then that amount shall not be charged to the client.

b) Where materials are so supplied or specified, Lush New Media will take every care to secure the best results, but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of materials so supplied or specified.

c) Quantities of materials supplied shall be adequate to cover normal spoilage.

13. Non payment of invoices or insolvency: If the client ceases to pay his debts in the ordinary course of business or cannot pay his debts as they become due or being a company is deemed to be unable to pay its debts or has a winding-up petition issued against it or being a person commits an act of bankruptcy or has a bankruptcy petition issued against him, Lush New Media without prejudice to other remedies shall

a) have the right not to proceed further with the contract or any other work for the client and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the client, such charge to be an immediate debt due to him, and

b) in respect of all unpaid debts due from the client have a general lien on all goods and property in his possession (whether worked on or not) and shall be entitled on the expiration of 14 days notice to dispose of such goods or property in such manner and at such price as he thinks fit and to apply the proceeds towards such debts.

c) If Lush New Media has to resort to the law to retrieve any owed monies from outstanding invoices and every reasonable effort has been made to recover the due monies the following conditions will come into place: A claim to have the matter dealt with by an English Court of Law will be submitted, the client will then be liable for all of Lush New Media’s court costs, solicitor fees, time (charged at the hourly rate of £45ph) and, if required, bailiffs. From the date of the claim at an English Court of Law all outstanding monies will incur interest at a daily rate of 8% above the Bank of England base rate up to and including the date of the court case.

14. Illegal matter a) Lush New Media shall not be required to publish any matter which is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights of any third party.

b) Lush New Media shall be indemnified by the client in respect of any claims, costs and expenses arising out of any libellous matter or any infringement of copyright, patent, and design or of any other proprietary or personal rights contained in any material published for the client. The indemnity shall extend to any amounts paid on a lawyer’s advice in settlement of any claim. (see section 8). It is the responsibility of the client supplying images, text and any other elements forming the final design to ensure they are copyright approved and/or permissions have been granted for their usage if not owned/copy written by the client.

15. Force majeure. Lush New Media shall be under no liability if he shall be unable to carry out any provision of the contract for any reason beyond his control including (without limiting the foregoing) Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the contract. During the continuance of such a contingency the client may by written notice to Lush New Media elect to terminate the contract and pay for work done and materials used, but subject thereto shall otherwise accept delivery when available.

16. These conditions and all other express terms of the contract shall be governed and construed in accordance with the laws of England.

17. Copyright ©: all imagery and/or scripting used on Lush New Media servers or servers contracted by Lush New Media remains the intellectual property of Lush New Media, therefore it is prohibited and unlawful to copy, adapt, distribute, communicate to the public by electronic transmission (including by broadcasting and in an on demand service), rent or lend copies to the public or any other 3rd party within England and the UK without prior written permission of Lush New Media. If material is discovered in use without permission the designer will inform the police or the relevant local trading standards department.

18. Lush New Media reserve the right to use any work it has produced for the purpose of self-promotion.

19. Lush New Media reserves the right to make changes to these terms and conditions from time to time.

If you have any queries or issues relating to these Terms and Conditions please contact Lush New Media.