Terms & Conditions of Business
This Agreement is made on [as date of estimate or Proposal] between burst* of 15 Wilbury Crescent, Hove, BN3 6FL and the client (“Client”) named in the proposal. (or) These Terms and Conditions apply to all offers, quotations and provision of services by burst* (“burst*”) to any client or potential client.
These Terms and Conditions shall in all cases be exclusive of, and prevail over, all other terms and conditions, written or oral, implied by trade, custom, or course of dealing, wherever appearing or however introduced, unless expressly otherwise agreed to by burst* in writing. Where any right exists under the Law these terms shall exist in addition.
1.Scope of Services
1.1 burst* (“we”) will advise the Client (“you”) in connection with all matters (including design concept and production) relating to or touching brand and corporate identity and/or the packaging or marketing of the goods and/or services sold by you. The specific services we shall provide (“the Services”) are set out in the Schedule. 1.2 If reasonably requested we will assist you in relation to the selection of manufacturers, printers and other contractors for the execution of the designs prepared by us. You acknowledge that all decisions and contractual arrangements concerning such matters are your sole responsibility and that we shall be under no liability to you in that respect.
2.1 The price to be paid for the Services (“the Price”) is as set out in the proposal and is exclusive of VAT. Where you or we propose alterations to the Services during the course of the work these shall be agreed by us both in writing before the work proceeds and the Price varied accordingly. 2.2 Any estimate of the whole or any part of the Price is given in good faith and shall be treated as an estimate only and all errors and omissions shall be excluded and any such estimates of the Price shall apply for three (3) months from the date of the document containing the Price. 2.3 Where the contract is quoted in stages (herein referred to as “Phases”) then each Phase shall be an individual contract under these conditions and burst* shall be entitled to be paid in advance 50 per cent of the Price in respect of each Phase or invoice in full on completion of that Phase. 2.4 Payment of the Price is due within 30 days of delivery of an invoice and we shall be entitled to charge interest on overdue sums thereafter at the rate of 4% per annum above the base rate, for the time being, of our bank. 2.5 burst* will charge to the Client (together with a 20% handling charge) the cost of all authorised travel.
3. Intellectual Property
3.1 “Supplies” means all data, information, programs, artwork, photographs, visuals, models and other materials that we provide to you as part of the Services, but does not include material that has been obtained from you. 3.2 We reserve the exclusive right:- To use any designs, art concepts, design concepts, software ideas, copyright, design right, moral right (“Intellectual Property”) or other Intellectual Property attaching to the Supplies in any field or industry outside that covered by this Contract; and to use such Intellectual Property as shall not be utilised by you in any field or industry. 3.3 Copyright for the final design will be assigned to you upon completion of the Services and payment of the Price in full. 3.4 You agree not to alter, modify or vary any design supplied by us as part of the Services without our prior written consent 3.5 You agree that nothing in this contract shall be taken to prevent burst* from using any expertise acquired or developed during the performance of the Services in the provision of services for other clients or on its own behalf. 3.6 Unless expressly agreed in writing and supported by a retainer fee, burst* does not work on an exclusive basis for clients.
4.1 You confirm that any information provided by you to be used by us for the purpose of providing the Services will not infringe the copyright or other rights of any third party and you shall indemnify us against any loss, damages, costs, expenses or other claims arising from any such infringement. 4.2 We confirm that we shall use all reasonable endeavours to ensure that any information provided by us to be used by you will not infringe the copyright or other rights of any third party. However, it shall be the responsibility of the Client to take such steps as it may consider appropriate to investigate whether any work prepared, created or designed by burst* or its agents may infringe any rights of third parties and/or the legislation of any jurisdiction anywhere in the world. We shall co-operate with you in regard to any investigation into any of the above matters which you may wish to carry out, but we reserve the right in such case to charge a further fee according to the additional work undertaken.
5.1 Any information about us or you or about our products or your products or financial or business information shall be treated as confidential, used only for the purpose of performance of obligations under this Agreement and not disclosed save as permitted under this Agreement, without limit as to time. Provided that information in the public domain otherwise than through the default of the other party shall not be deemed confidential under this clause. 5.2 The termination of this Agreement will not affect this clause.
6.1 Any dates or times specified for the completion of any Phase are approximate only and we will use our reasonable endeavours to abide by the dates agreed for delivery of the Services. You agree to supply material and other resources to us promptly as agreed between us and we shall not be liable where failure to deliver is caused by your delay. 6.2 We will not be responsible for any delay or failure to deliver the Services caused by circumstances beyond our control, such as Acts of God, fire, strikes, failure of subcontractors or suppliers to supply material required. Where such delay occurs our obligations under this Agreement shall be suspended for the period of such delay and/or we shall be entitled to terminate the contract by written notice to you to that effect at any time without any liability on our part.
7. Publicity and Examples
7.1 We shall have reasonable right to publicise our involvement in this Agreement. 7.2 You shall provide examples of all your products covered by this Agreement to us free of charge and we may use them for publicity. 7.3 You agree to give burst* full credit for design work produced by us in all initial press releases concerning the new design.
8.1 The Agreement shall continue until either performance of the Services set out in the schedule, or where an on-going work commitment is signed may be terminated on three (3) months’ notice from one of us to the other given at any time, such notice to expire only at the end of a Phase, where relevant. 8.2 Either party may (without limiting any other remedy) at any time terminate this Agreement by giving written notice to the other if the other commits any breach of this Agreement and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
9. Limitation of Liability
9.1 Save as provided above, you agree our liability for breach of this Agreement or any other liability of us to you shall be limited to the annual total value of the contract and that all implied terms, conditions or other legal provisions are hereby excluded; save that neither party shall exclude or limit its liability to the other for death or personal injury caused by negligence. We agree that the exclusion and limitation of liability in this clause is reasonable, reflects the respective financial positions of the parties and that the price agreed reflects the position on liability. In no event shall we be liable to you for indirect, financial, consequential loss, loss of profit, revenue or goodwill. 9.2 We will not be responsible for any default of any third party or sub-contractor manufacturer or supplier. 9.3 We shall be under no liability to you for any actions costs claims or demands suffered in respect of any infringement of any patent trademark trade name registered design device for the protection of Intellectual Property or passing off save in so far as such infringement is due to our default or bad faith.
10.1 This Agreement shall be subject to English Law and under the nonexclusive jurisdiction of the English Courts. 10.2 Any notice required or permitted to be given by either party to the other under this Agreement shall be in writing addressed to the other party at its registered office or principal place of business. 10.3 No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right and no waiver by either party of any breach of this Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision. 10.4 This Agreement, together with the proposal, sets out the entire agreement between us save for any confidentiality agreement between us.