The definitions and rules of interpretation in this clause apply in these terms and conditions.
Company: Branding by Tonik, a trading name of ESP Projects Limited Registered in England No. 4472697 whose registered address is Unit 9, Edmund Road Business Centre, 135 Edmund Road, Sheffield, S2 4ED.
Confidential Information: all information whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Contract: the Proposal Document and the Customer’s acceptance of it in writing or orally.
Customer: the person, firm or company who purchases Services from the Company as set out in the Order Form.
Deliverables: all products and materials developed by the Company in relation to the Services in any media, including, without limitation, designs, artwork, diagrams, images, reports and specifications (including drafts).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Proposal: the proposal document produced by the Company and sent to the Customer setting out the scope of the Services, the Fee and the Deliverables.
Services: the services to be provided by the Company under the Contract.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Headings do not affect the interpretation of these conditions.
Application of Terms and Conditions
These terms and conditions shall:
(a) not apply to the design and/or development of websites, blogs, email newsletters, pay per click campaigns and any other digital products or services provided by the Company (for which separate terms apply); and
(b) apply to and be incorporated in the Contract; and
(c) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s standard terms, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
Any variation of the Contract shall be in writing and signed by or on behalf of the parties.
Effect of Order Form
The Company’s Proposal Document constitutes an offer by the Company to provide the Services specified in it on these conditions; accordingly, the reply and acceptance of the Proposal by the Customer shall establish a contract for the supply and purchase of those Services on these conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in the Proposal shall not govern the Contract.
The Company shall use its best endeavours to meet any performance dates, but any such dates shall be subject to the Customer providing any required input and/or materials within the timescales requested by the Company and shall be estimates only. Time shall not be of the essence of the Contract.
The Company shall perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards.
The Company shall comply with all laws and regulations applicable to the provision of the Services.
In relation to Services for the design of logos the Company shall provide the Customer with three designs for the Customer to choose from. The Customer may then request up to two revisions of one of the logos. If the Customer requests the Company to provide further designs or further revisions, the Company reserves the right to charge the Customer on a time and materials basis as set out in clause 7.2 below.
The only Deliverable(s) that the Company shall be obliged to provide to the Customer on completion of the Services is/are as set out in the Proposal Document
The Company makes no warranty or representation that the provision of the Services will guarantee any specific outcome for the Customer (such as an increase in profit or more customers) as the success of the Services is intrinsically linked with the implementation by the Customer.
The Customer shall:
(a) co-operate with the Company in all matters and appoint a Customer contact who shall have the authority to contractually bind the Customer on matters relating to the Services; and
(b) provide in a timely manner such information as the Company may request, and ensure that such information is accurate in all material respects.
If the Customer chooses to engage a third party to manage the Services, the Company reserves the right to charge additional fees to reflect the additional time required in dealing with such third party.
The Customer shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of six months after the completion of the Services solicit or entice away from the Company or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Company.
If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
If either party requests a change to the scope of the Services, the Company shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to the Company’s charges arising from the change;
(c) the likely effect of the change on the timing of completion of the Services; and
(d) any other impact of the change on the terms of the Contract.
If the Customer wishes the Company to proceed with the change, the Company has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, and any other relevant terms of the Contract to take account of the change.
Charges and Payment
Condition 7.2 shall apply if the Services are to be provided on a time-and-materials basis. Condition 7.3 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 7 shall apply in either case.
Where the Services are provided on a time-and-materials basis:
(a) the charges payable for the Services shall be calculated in accordance with the Company’s standard daily fee rates as amended from time to time;
(b) the Company’s standard daily fee rates are calculated on the basis of an eight-hour day worked between 9.00 am and 6.00 pm on weekdays (excluding weekends and public holidays);
(c) the Company shall (only in circumstances where the Customer has requested that the Company work overtime) be entitled to charge at an overtime rate of 150% of the normal rate for part days and for time worked by members of the project team outside the hours referred to in condition 7.2(b) on a pro-rata basis;
(d) the Company shall ensure that all members of the project team complete time sheets recording time spent on the Services, and the Company shall use such time sheets to calculate the charges covered by each monthly invoice referred to in condition 7.2(e); and
(e) the Company shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition 7. Each invoice shall set out the time spent by each member of the project team and provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.
Where the Services are provided for a fixed price the total price for the Services shall be the amount set out on the Proposal. 50% of the total price (the deposit) shall be payable in advance and the provision of the Services shall not commence until the deposit has been received by the Company in cleared funds.
The Company shall invoice the Customer for the charges that are payable plus VAT where appropriate. Invoices are payable within 14 days of the date of the invoice.
Without prejudice to any other right or remedy that the Company may have, if the Customer fails to pay the Company on the due date the Company may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Natwest Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. The Company may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
All payments payable to the Company under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
The Company may, without prejudice to any other rights it may have, set off any liability of the Customer to the Company against any liability of the Company to the Customer.
Intellectual Property Rights
Subject to clause 8.2, as between the Company and the Customer, all Intellectual Property Rights in the Deliverables shall be the property of the Company. Nothing in this agreement shall operate to transfer ownership of the Deliverables.
Where it owns the Intellectual Property Rights in the Deliverables, the Company shall license the use of the Deliverables to the Customer on a perpetual, royalty free, worldwide and (except where agreed otherwise) non-exclusive basis. Where the Company has licensed a Deliverable or part of a Deliverable, the Company shall, to the extent that it is legally able, sublicense such Deliverable(s) to the Customer on a perpetual, royalty free, worldwide, non-exclusive basis.
Confidentiality and Companys Property
The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Company or its agents, and any other Confidential Information concerning the Company’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Customer’s obligations to the Company, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
The Company shall only use the Confidential Information provided to it by the Customer for the purposes of providing the Services pursuant to this agreement and shall not disclose any such Confidential Information to any third party other than its employees and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
The obligations set out in clauses 9.1 and 9.2 shall not apply to Confidential Information which the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this clause 9; or
(b) was in possession of the receiving party prior to disclosure by the disclosing party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) was independently developed by the receiving party; or
(e) was required to be disclosed by governmental authority, provided that the receiving party gives the disclosing party prompt written notice of the requirement.
All materials, drawings, specifications and data supplied by the Company to the Customer shall at all times be and remain the exclusive property of the Company, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Company, and shall not be disposed of or used other than in accordance with the Company’s written instructions or authorisation.
The Company shall be entitled to use material produced for the Customer in the Company’s promotional material unless the Customer gives prior written notice that any material produced for them should not be so used.
The obligations of confidentiality in this clause 9 shall not be affected by the expiry or termination of this agreement.
Limitation of Liability
The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) the Contract;
(b) any use made by the Customer of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
Nothing in these conditions excludes the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) for fraud or fraudulent misrepresentation.
Subject to condition 10.2:
(a) the Company shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services to which any claim relates.
Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) there is a change of control of the other party; or
(h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
Upon termination, each party shall return all materials provided to it by the other party to the other party.
The Company shall have no liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm (‘Force Majeure Event’).
If the Company becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this agreement, it shall notify the Customer as soon as possible and shall inform the Customer of the period for which it is estimated that such failure or delay will continue. The Company shall take all reasonable steps to mitigate the effect of the Force Majeure Event.
Upon termination, each party shall return all materials provided to it by the other party to the other party.
A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
The Customer may assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
The Company may not at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract unless the business and assets of the Company have been transferred to a third party by way of a business sale.
No Partnership or Agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
Third Party Rights
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
Governing Law And Jurisdiction
Any notice under the Contract shall be in writing and shall be delivered by hand or sent by email, pre-paid first-class post or recorded delivery post to the other party at its address as set out in the Contract, or such other address as may have been notified by that party for such purposes. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.
The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).