YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 7.
“Background Intellectual Property” any Intellectual Property, other than Foreground Intellectual Property, that is made available or is used in connection with the provision of the Services;
“Brand” any registered or unregistered trademark rights in respect of your brand name and associated logos;
“Business Day” a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Charges” the charges payable by you for the supply of the Services in accordance with clause 5;
“Commencement Date” has the meaning set out in clause 2.2;
“Conditions” these terms and conditions as amended from time to time in accordance with clause 10.5;
“Contract” the contract between us and you for the supply of Services in accordance with these Conditions;
“Control” shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression “change of Control” shall be construed accordingly;
“Customer Materials” Any specific customer materials listed in the Order Acknowledgment together with all documents, equipment, branding, logos, digital content and/or materials in any format whatsoever which we reasonably require from you in order to provide the Services;
“Default “has the meaning set out in clause 4.4;
“Deliverables” all documents, products, digital content and/or materials in any form (including any deliverables set out in the Order) developed by us or our employees, agents or subcontractors and delivered in relation to the Services;
“Foreground Intellectual Property” any Intellectual Property that arises or is obtained or developed by us (or our employees, agents or subcontractors) or by the parties jointly in the course of or in connection with the provision of the Services;
“Intellectual Property” all patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Order” your order for Services as set out in your purchase order form, your written acceptance of a quotation by us, or overleaf, as the case may be;
“Order Acknowledgment” has the meaning set out in clause 2.2;
“Our Materials” has the meaning set out in clause 6.5;
“Services” the services, including the Deliverables, supplied by us to you as set out in the Specification;
“Specification” the description or specification of the Services provided in writing by us to you;
“us” Cronnie Creative LLP registered in England and Wales with company number OC407167 and whose registered office is at 5 Bluebell Close, Gateshead, Tyne and Wear, NE9 6RH and “we” and “our” shall be construed accordingly; and
“you” the person or firm who purchases Services from us and “your” shall be construed accordingly.
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.2 Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.3 A reference to “writing” or “written” excludes fax and email.
2. Basis of contract
2.1 The Order constitutes an offer by you to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when we issue written acceptance of the Order (the “Order Acknowledgement“) at which point and on which date the Contract shall come into existence (“Commencement Date“).
32.3 Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained on our website or in our catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by us shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
3. Supply of Services
3.1 We shall supply the Services to you in accordance with the Specification in all material respects.
3.2 We shall use all reasonable endeavours to meet any performance dates specified in the Order Acknowledgement, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. In particular, you acknowledge that any estimated performance dates are subject to you providing any necessary Customer Materials and otherwise complying with the obligations set out in clause 1 and we shall not be responsible for any delays arising therefrom.
3.3 We shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and we shall notify you in any such event.
3.4 We warrant to you that the Services will be provided using reasonable care and skill.
3.5 We shall, where the Deliverables can be retained in electronic format, hold copies of such Deliverables for a maximum of 12 months from the date on which we provide the Deliverables to you. Deliverables will be archived after this period, and should you request copies of the Deliverables from archive, we will use reasonable endeavours to recover the same, subject to you paying our charges for recovery, as advised at the time of your request. You acknowledge that your Deliverables may not be recoverable from archive, and that you are solely responsible for obtaining your own backup copies of the Deliverables.
4. Your obligations
4.1 You shall:
4.1.1 ensure that the terms of the Order and any information you provide in the Specification are complete and accurate;
4.1.2 co-operate with us in all matters relating to the Services;
4.1.3 provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as reasonably required by us;
4.1.4 provide us with such Customer Materials as we may reasonably require in order to supply the Services, and ensure that such information is provided in a format that is compatible with any specifications issued by us and is accurate in all material respects;
4.1.5 prepare your premises for the supply of the Services;
4.1.6 obtain and maintain all necessary licences, permissions and consents (including, but not limited to all governmental and regulatory requirements where the provision of the Services means we will come into contact with children or vulnerable adults, and obtaining all parental consents, personal licences and waivers of moral rights from the subjects of any of the Deliverables) which may be required before the date on which the Services are to start, including but not limited to in respect of all consents required to allow access to your premises; and
4.1.7 comply with any additional obligations as set out in the Specification.
4.2 You warrant that you own all right, title and interest in and to all of the Customer Materials and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Materials.
4.3 You shall indemnify us 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 us arising out of or in connection with our use of the Customer Materials, including but not limited to any claims from third parties that our use of the Customer Materials infringes the Intellectual Property rights of any third party.
4.4 If the performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (“Default“):
4.4.1 we shall without limiting our other rights or remedies have the right to suspend performance of the Services until you remedy your Default, and to rely on your Default to relieve us from the performance of any of our obligations to the extent your Default prevents or delays our performance of any of our obligations;
4.4.2 we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 4; and
4.4.3 you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from your Default.
5. Charges and payment
5.1 Any charges listed in a quotation provided by us are estimates and are subject to final confirmation in the Order Acknowledgement.
5.2 The Charges for the Services shall be on a time and materials basis:
5.2.1 the Charges shall be calculated in accordance with our standard daily fee rates, as set out in the Order Acknowledgement;
5.2.2 our standard daily fee rates for each individual are calculated on the basis of a seven-hour day from 9.00 am to 5.00 pm worked on Business Days;
5.2.3 where set out in the Order Acknowledgment, we shall be entitled to charge an overtime rate as a percentage of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom we engage on the Services outside the hours referred to in clause 2.2; and
5.2.4 save in respect of the specific expenses included within our Charges in the Order Acknowledgment, we shall be entitled to charge you for any expenses reasonably incurred by the individuals whom we engage in connection with the Services, including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by us for the performance of the Services, and for the cost of any materials.
5.3 We reserve the right to increase our standard daily fee rates, provided that such charges cannot be increased more than once in any 12 month period. We will give you written notice of any such increase 90 days before the proposed date of the increase. If such increase is not acceptable to you, you shall notify us in writing within 30 days of the date of our notice and we shall have the right without limiting our other rights or remedies to terminate the Contract by giving 30 days written notice to you.
5.4 We shall invoice you once we have provided all Deliverables to you in accordance with the Specification or, in circumstances where the estimated performance dates for the Services extend beyond 30 days, monthly in arrears for the Services provided during that month.
5.5 We reserve the right to charge an additional fee calculated in accordance with our standard daily fee rates for any re-edit or changes required over and above the Specification or required to be carried out once we have provided the Deliverables to you.
5.6 You shall pay each invoice submitted by us:
5.6.1 within 14 days of the date of the invoice; and
5.6.2 in full and in cleared funds to a bank account nominated in writing by us, and time for payment shall be of the essence of the Contract.
5.7 All amounts payable by you under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.8 If you fail to make any payment due to us under the Contract by the due date for payment, then you shall pay interest on the overdue amount at the rate of 4% per cent per annum above Barclays Bank PLC’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. You shall pay the interest together with the overdue amount.
5.9 You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.
6. Intellectual property rights
6.1 All Background Intellectual Property is and shall remain the exclusive property of the party owning it (or, where applicable, the third party from whom its right to use the Background Intellectual Property has derived).
6.2 Subject to clause 6.3, all Foreground Intellectual Property shall vest in and be owned absolutely by you. To the extent that we sub-contract the performance of the Services, we shall ensure that any Foreground Intellectual Property arising from the work of our sub-contractor shall be assigned to you absolutely.
6.3 The ownership of all Foreground Intellectual Property Rights shall remain with us until payment in full has been received for all Charges owing to us and all other charges under any other contract between us. Once payment has been received, ownership of all Foreground Intellectual Property shall pass to you.
6.4 You hereby grant us a license to use:
6.4.1 all such Foreground Intellectual Property referred to at clause 6.2 above; and
6.4.2 the Brand,
free of charge and on a nonexclusive, irrevocable, perpetual, worldwide basis strictly for the purposes of promotion of our business including, but not limited to, by way of self-promotion in our portfolio, our presentations, in advertising, in print and online.
6.5 All materials, equipment, documents and other property of ours (“Our Materials“) shall, at all times, remain our exclusive property, but shall be held by you at your premises in safe custody at your own risk and maintained in good condition until returned to us, and not disposed of or used other than in accordance with our written instructions or authorisation
7. Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1 Nothing in the Contract shall limit or exclude our liability for:
7.1.1 death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors;
7.1.2 fraud or fraudulent misrepresentation; or
7.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
7.2 Subject to clause 1, we shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
7.2.1 loss of profits;
7.2.2 loss of sales or business;
7.2.3 loss of agreements or contracts;
7.2.4 loss of anticipated savings;
7.2.5 loss of use or corruption of software, data or information;
7.2.6 loss of damage to goodwill; and
7.2.7 any indirect or consequential loss.
7.3 Subject to clause 7.1, our total liability to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Charges paid under the Contract.
7.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.5 This clause 7 shall survive termination of the Contract.
8.1 Without limiting the other rights or remedies available to us under this Contract, we may terminate the Contract with immediate effect by giving written notice to you if:
8.1.1 you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 14 days of being notified in writing of the breach;
8.1.2 you take any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), a person becomes entitled to appoint a receiver over your assets or a receiver is appointed to any of your assets or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
8.1.3 you suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part of your business; or
8.1.4 your financial position deteriorates to such an extent that in our opinion, your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
8.2 Without limiting our other rights or remedies, we may terminate the Contract with immediate effect by giving written notice to you if:
8.2.1 you fail to comply with your obligations at clause 4;
8.2.2 you fail to pay any amount due under the Contract on the due date for payment and remain in default not less than 5 days after being notified to make such payment; or
8.2.3 you are subject to a change of Control.
8.3 Without limiting the other rights or remedies available to us under this Contract, we may suspend provision of the Services under the Contract or any other contract between you and us if you become subject to any of the events listed in clause 1.2 to clause 8.1.4 or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due under this Contract on the due date for payment.
9. Consequences of termination
On termination of the Contract for any reason:
9.1.1 you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
9.1.2 you shall return all of Our Materials and any Deliverables which have not been fully paid for. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
9.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
9.1.4 clauses which expressly or by implication survive termination shall continue in full force and effect.
10.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.2 Assignment and other dealings.
We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of our rights under the Contract and may subcontract or delegate in any manner any or all of our obligations under the Contract to any third party or agent. You shall not, without our prior written consent, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights or obligations under the Contract.
10.3.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, or clients of the other party, except as permitted by clause 3.2.
10.3.2 Each party may disclose the other party’s confidential information:
10.3.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 3; and
10.3.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
10.4 Entire agreement.
10.4.1 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.
10.4.2 Each party 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.
10.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
10.6.1 waive that or any other right or remedy; or
10.6.2 prevent or restrict the further exercise of that or any other right or remedy.
10.7 Severance. If any provision or part-provision of the Contract 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 the Contract.
10.8.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, or commercial courier.
10.8.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 8.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
10.8.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.9 Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
10.10 Governing law. The Contract, 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.
10.11 Jurisdiction. 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 the Contract or its subject matter or formation.