FRIDAY FREELANCER
TERMS OF BUSINESS FOR CONSULTANCY AND DESIGN
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO CLAUSE 10
1. BACKGROUND
1.1 These are the terms and conditions (“Terms”) on which Mark Horton (trading as Friday Freelancer) (“FF”) provides the Services. These terms set out how FF will provide the Services, what the Customer’s obligations are and other important information.
1.2 The scope of the Services are set out in the Project Proposal, which the Customer will be required to sign.
1.3 The Customer will be required to read and accept these Terms when ordering Services. If the Customer does not agree to be bound by these Terms it will not be able to engage FF’s Services.
2. INTERPRETATION
2.1 The definitions and rules of interpretation set out in Schedule 1 apply in these Terms.
2.2 The Schedule and the Project Proposal forms part of these Terms and shall have effect as if set out in full in the body of these Terms. Any reference to these Terms include the Schedule and the Project Proposal.
2.3 In the event of inconsistency between these Terms and the Project Proposal, these Terms shall take precedence to the extent of such inconsistency or conflict only unless otherwise expressly stated in the Project Proposal.
3. BASIS OF CONTRACT
3.1 Your selection of an ‘option’ and signature of the Project Proposal shall be deemed an Order and will constitute an offer by you to contract with FF on these Terms.
3.2 The Order shall only be accepted when FF signs the same Order, at which point the Contract shall come into existence (“Commencement Date”).
3.3 In performance of the Services, FF may prepare a Design Brief setting out key stages of the Services, the estimated dates by which each key stage is to be achieved (as a guide only) and further details about the Services (including concept designs to be produced by FF).
3.4 Any samples, drawings, descriptive matter or advertising issued by FF (including in the Design Brief), and any descriptions or illustrations contained in FF’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them (unless otherwise stated as being a Final Deliverable in a Design Brief). They shall not form part of the Contract or have any contractual force.
3.5 These Terms apply to the Contract to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3.6 The provision of a Project Proposal by FF shall not constitute an offer. Any Project Proposal is only valid for a period of 3 months from its date of issue, after which time it will automatically lapse unless otherwise stated by FF in writing and entirely at its own discretion.
4. SUPPLY OF SERVICES
4.1 In consideration for the payment of the Fees (as set out in the Order) to FF by the Customer, FF shall supply the Services to the Customer in accordance with the Order in all material respects.
4.2 FF shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 FF reserves the right to amend the Order if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and FF shall notify the Customer in any such event.
4.4 FF warrants to the Customer that the Services will be provided using reasonable care and skill. FF further warrants that its design work is original and that FF will not knowingly infringe the Intellectual Property Rights of a third party (though the Customer accepts that FF is under no obligation to make any enquiries or investigation in this respect).
4.5 FF shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services.
4.6 When required as part of the Services, FF may advise on implementation based upon normal production methods and techniques (based on information provided by the Customer). FF gives no warranty or representation concerning the performance of any packaging, printed material or digital display. The Customer accepts that FF is not responsible for the production of packaging, printed material or digital display and that full responsibility for these elements remain with the Customer unless expressly stated in the Order. Failure to consult FF on implementation may result in unsatisfactory results, for which FF accepts no responsibility.
4.7 In the case of electronically displayed designs, the Customer acknowledges that it may need to obtain relevant licences for the use of proprietary software, and FF accepts no responsibility for the Customer’s failure to do so.
5. AMENDMENT TO ORDER
5.1 If the Customer requests that a material change is made to the Order after it has been accepted by FF, FF may elect in writing within 10 Business Days:
(a) to implement the change (and vary the Contract accordingly), and to provide a revised Project Proposal which incorporates the change, stating the effect the changes will have on the Order, including (but not limited to) any time estimates and fees; or
(b) not to implement the change but instead prepare an amended Project Proposal setting out alternative proposals. The amended Project Proposal will state the effect that the changes will have on the Project Proposal, including (but not limited to) any time estimates and fees, and will be required to be signed by the Customer (the signature of which will terminate the Contract and constitute a new Order); or
(c) refuse the change.
5.2 The parties may decide to implement a change proposed pursuant to clauses 5.1 (a) or (b) within 10 Business Days by the Customer signing a revised Project Proposal.
5.3 If the Customer requests that a minor change is made to the Order after it has been accepted by FF, FF may elect (at its discretion) to:
(a) negotiate and agree the minor change to the Order by email, at which point the Order and the Services to be provided by FF pursuant to these terms and conditions shall be varied accordingly; or
(b) consider that the requested amendment is significant (and not minor), and follow the procedure set out in clause 5.1 above.
5.4 If either Party does not agree to implement a proposed change FF shall continue to provide the Services as set out in the Order without implementing the proposed change.
6. CUSTOMER'S OBLIGATIONS
6.1 The Customer shall:
(a) pay the Fees on time as and when they fall due, as set out in clause 7 and the Order;
(b) ensure that the terms of the Order and any information it provides to FF to enable it to prepare the Project Proposal are complete and accurate;
(c) co-operate with FF in all matters relating to the Services;
(d) provide FF with such information and materials as FF may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects. The Customer understands and accepts that FF will rely on the accuracy and completeness of the information concerning the Customer’s goods/services, the Services (including the scope of use required), the market and other relevant information that is provided by the Customer in relation to the Services. The Customer accepts that FF shall not be responsible for any issues arising from errors, omissions or shortcomings in any such information;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(f) unless a specific time frame within which the customer’s response is to be made has been expressly agreed in the Order, the Customer shall respond promptly to any request by FF for information, approval or sign off to any particular stage, and in any event, no later than 5 Business Days from the dates of such request.
6.2 If FF’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (a “Customer Default”):
(a) without limiting or affecting any other right or remedy available to it, FF shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays FF’s performance of any of its obligations;
(b) FF shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from FF’s failure or delay to perform any of its obligations as set out in this clause 6; and
(c) the Customer shall reimburse FF on written demand for any costs or losses sustained or incurred by FF arising directly or indirectly from the Customer Default.
7. FEES AND PAYMENT
7.1 The Fees for the Services shall be set out in the Order. The Fee only includes FF’s fee unless otherwise stated in the Order. Any and all other costs, such as (but not limited to) equipment rental, photographers’ fees, font and/or artwork licences, music licences, hosting fees or other expenses incurred by FF will be in addition to the Fees unless otherwise provided for in the Order.
7.2 FF shall charge additional Fees for any time worked outside the hours referred to in the Order. The Order shall set out the rate at which any additional Fees will be charged, and shall be payable by the Customer in the same manner as the Fees specified in the Order.
7.3 FF reserves the right to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period.
7.4 FF shall invoice the Customer at the times and/or in such instalments as specified in the Order.
7.5 The Customer shall pay each invoice submitted by FF within 30 days of the date of the invoice unless otherwise provided in the Order; and in full and in cleared funds to a bank account nominated in writing by FF. Time for payment shall be of the essence of the Contract.
7.6 All amounts payable by the Customer under the Contract are exclusive of VAT. Where any taxable supply for VAT purposes is made under the Contract by FF to the Customer, the Customer shall, on receipt of a valid VAT invoice from FF, pay to FF 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.
7.7 If the Customer fails to make a payment due to FF under the Contract by the due date, then, without limiting FF’s remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.8 Payments will be credited first to late payments and next to unpaid balances. The Customer shall be responsible for all collection or legal fees necessitated by lateness of or defaults in payments.
7.9 FF reserves the right to withhold delivery and any transfer of ownership of any current work until all sums due are paid in full, together with any interest. All grants of any licence to use any intellectual property rights under the Contract are conditional upon receipt of all payments due under the Contract.
7.10 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.11 For new customers, FF may, at its discretion, invoice up to 100% of its Fees and/or costs (as set out in the Order) in advance of commencing work, and FF reserves the right not to commence work until this has been settled.
7.12 If more than one design is chosen by the Customer and this was not provided for in the Order, an additional fee may be payable by the Customer, and FF will advise the Customer of this additional fee before it is incurred.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 In consideration of the Customer paying the Fees to FF in accordance with clause 7, and subject to the Customer’s sign-off of the Final Deliverable, FF shall grant to the Customer a perpetual exclusive, non-transferable, royalty-free licence to use the Project IP. For the avoidance of doubt, FF IP not forming part of the Final Deliverable (for example relating to works produced by FF in providing the Services but not chosen by the Customer as part of the Final Deliverable) shall not be licenced to the Customer by FF.
8.2 For the avoidance of doubt, no Project IP or FF IP shall be transferred or assigned to the customer as a result of this Contract.
8.3 Customer IP shall remain the sole property of the Customer. The Customer hereby grants FF an irrevocable, non-exclusive, non-transferable licence to use, reproduce, modify, display and publish such content solely in connection with FF’s performance of the Contract, and for marketing and publicity under clause 14.6.
8.4 The Customer warrants that FF’s possession and use of the Customer IP shall comply with all applicable laws, regulations, industry standards and codes of practice in the jurisdictions in which the Final Deliverable will be used, and not infringe the Intellectual Property Rights of any third party.
8.5 In the case of Third Party Materials it is the intention of the parties for the Customer to receive a direct non-exclusive licence of such Third Party Materials. FF shall notify the Customer as to whether such Third Party Materials are capable of being licensed to the Customer by the third party, and if so, the terms and the cost of such licence.
9. DATA PROTECTION
The Parties shall at all times comply with their obligations under Data Protection Legislation to ensure that any personal data they control or process remains confidential. Personal data will only be used for a permitted purpose and for a reasonable time, subject to any legal or regulatory requirements.
10. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
10.1 FF has obtained insurance cover in respect of its own legal liability for individual claims. The limits and exclusions in this clause reflect the insurance cover FF has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
10.2 References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.3 Nothing in this clause 10 shall limit the Customer's payment obligations under the Contract.
10.4 Nothing in these terms and conditions shall limit or exclude FF’s or the Customer’s liability for death or personal injury caused by its negligence, or fraud or fraudulent misrepresentation.
10.5 Subject to clause 10.4, FF’s total liability to the Customer for all loss or damage shall not exceed the greater of:
(a) the Fees payable to FF pursuant to the Contract; or
(b) the amount recovered by FF from its insurer in relation to the claim.
10.6 FF shall not be liable for any of the following types of loss:
(a) loss of profits.
(b) loss of sales or business.
(c) loss of agreements or contracts.
(d) loss of anticipated savings.
(e) loss of use or corruption of software, data or information.
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
10.7 FF shall not be responsible for any errors apparent in artwork, copies or proofs that have been supplied to the Customer in advance of commencement of the Services, or signed off by the Customer.
10.8 FF has given commitments in clause 4 as to compliance of the Services with the Order. In view of these commitments, the terms implied by sections 3 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.9 This clause 10 shall survive termination of the Contract.
11. COMPLAINTS
11.1 If at any stage the Customer is not satisfied with the Services being provided by FF pursuant to the Contract, the matter shall be dealt with in the following manner:
11.1.1 Stage 1: The Customer will, in the first instance, notify FF by email of its dissatisfaction, with a detailed explanation of why the Customer considers the Services to be unsatisfactory. Within 5 Business Days of receipt of such notification FF will either:
(i) if FF agrees with the Customer’s concerns, respond to the Customer’s email with a proposal on how FF will rectify the issue. If the proposal is not satisfactory to the Customer proceed to Stage 2; or
(ii) if FF disagrees with the Customer, respond to the Customer’s email explaining why it disagrees with the Customer’s view and asking the Customer to reconsider its view. If the Customer remains dissatisfied, proceed to Stage 2.
11.1.2 Stage 2: if the matter has not been resolved in accordance with Stage 1 above, FF and the Customer shall use their best efforts for a period of up to two weeks to attempt to find a satisfactory resolution. If the parties cannot resolve the matter in that period, refer to clause 12 (termination).
11.2 For the avoidance of doubt, sign-off by the Customer of any works produced by FF in accordance with the Order or any produced Design Brief shall be taken as acceptance of the quality of the Service provided up until that date. The Customer shall not be entitled to raise a complaint for any works that have been signed-off by the Customer.
12. TERMINATION
12.1 Without affecting any other right or remedy available to it, FF may terminate the Contract in accordance with clause 5.1(b).
12.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term 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 to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.3 Without affecting any other right or remedy available to it, FF may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment and such amount remains outstanding for a period of 14 days after its due date for payment; or
(b) there is a change of control of the Customer; or
(c) the continued association of FF with the Customer, or any particular project to which the Services relate, is or may be damaging to the goodwill and reputation of FF.
13. CONSEQUENCES OF TERMINATION
13.1 On termination of the Contract the Customer shall immediately pay to FF all of FF’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, FF shall submit an invoice, which shall be payable by the Customer immediately on receipt;
13.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
14. GENERAL
14.1 Force majeure. FF shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances FF shall be entitled to a reasonable extension of time for performing such obligations, provided that if the period of delay or non-performance continues for one month, the Customer may (at its option) terminate the Contract by giving 30 days’ written notice to FF.
14.2 Non-Solicitation. During the term of this Contract, and for a period of 6 months thereafter the Customer agrees not to solicit, recruit, engage or otherwise employ or retain any staff of FF.
14.3 No Partnership. Nothing in these terms and conditions is intended to, or shall be deemed to, establish any partnership or joint venture between FF and the Customer.
14.4 Assignment and other dealings.
(a) FF may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
14.5 Confidentiality.
(a) Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.5(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, 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, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 14.5; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
14.6 Publicity and Examples. When the Services are in the public domain, FF shall have rights of reasonable publicity, and if so requested, the Customer shall provide FF with free samples of the completed artwork to use as FF sees fit.
14.7 Entire agreement.
(a) The Contract 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.
(b) The Customer acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. The Customer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
14.8 Variation. Except as set out in these terms and conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.9 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.10 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 possible 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 a provision or part-provision under this clause 14.10 shall not affect the validity and enforceability of the rest of the contract.
14.11 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or if sent by email to the address specified in the Order.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting; or
(iii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 14.11(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 14.11 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
14.12 Third party rights.
No third party has or shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this contract. Nothing in these terms and conditions shall confer, or purport to confer, on any other third party any benefit or the right to enforce any provision of these terms and conditions.
14.13 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.
14.14 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.
Schedule 1 DEFINITIONS AND INTERPRETATION
1. The following definitions apply in this Agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 3.2.
Contract: means a contract for the purchase of and provision of Services, consisting of an Order and these Terms, as explained in clause 3.
Customer: the person or firm who purchases Services from FF.
Customer Default: has the meaning set out in clause 6.2.
Customer IP: means any and all Intellectual Property Rights owned, created or controlled by the customer prior to the Contract.
Design Brief: a design brief that may be prepared by FF that more particularly describes the Services to be provided pursuant to the Contract.
Fees: the fees payable by the Customer for the supply of the Services in accordance with clause 7 and the Order.
Final Deliverable: the deliverable specified in the Order (which may be more particularly described in the Design Brief) as the last deliverable to be supplied to the Customer by FF pursuant to the Contract.
FF: means Mark Horton trading as Mark Horton/Friday Freelancer.
FF IP: means any and all Intellectual Property Rights (that are not Project IP) owned, created or controlled by FF prior to or during performance of the Services (insofar as they do not relate to the Final Deliverable) or falling outside the scope of the Services.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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: the Customer's order for Services by its selection of an ‘option’ and signature of the Project Proposal.
Project IP: means any and all Intellectual Property Rights in the Final Deliverable specifically created by FF in connection with the Services.
Project Proposal: the description of potential options and service packages quoted by FF, and provided in writing by FF to the Customer.
Services: the services (chosen by the Customer) to be supplied by FF to the Customer and as set out in the Order.
Terms: The terms of business of FF set out in this document.
Third Party Materials: works or materials authored, created or performed by a third party which is incorporated into the Services and/or Final Deliverable.
TERMS OF BUSINESS FOR CONSULTANCY AND DESIGN
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO CLAUSE 10
1. BACKGROUND
1.1 These are the terms and conditions (“Terms”) on which Mark Horton (trading as Friday Freelancer) (“FF”) provides the Services. These terms set out how FF will provide the Services, what the Customer’s obligations are and other important information.
1.2 The scope of the Services are set out in the Project Proposal, which the Customer will be required to sign.
1.3 The Customer will be required to read and accept these Terms when ordering Services. If the Customer does not agree to be bound by these Terms it will not be able to engage FF’s Services.
2. INTERPRETATION
2.1 The definitions and rules of interpretation set out in Schedule 1 apply in these Terms.
2.2 The Schedule and the Project Proposal forms part of these Terms and shall have effect as if set out in full in the body of these Terms. Any reference to these Terms include the Schedule and the Project Proposal.
2.3 In the event of inconsistency between these Terms and the Project Proposal, these Terms shall take precedence to the extent of such inconsistency or conflict only unless otherwise expressly stated in the Project Proposal.
3. BASIS OF CONTRACT
3.1 Your selection of an ‘option’ and signature of the Project Proposal shall be deemed an Order and will constitute an offer by you to contract with FF on these Terms.
3.2 The Order shall only be accepted when FF signs the same Order, at which point the Contract shall come into existence (“Commencement Date”).
3.3 In performance of the Services, FF may prepare a Design Brief setting out key stages of the Services, the estimated dates by which each key stage is to be achieved (as a guide only) and further details about the Services (including concept designs to be produced by FF).
3.4 Any samples, drawings, descriptive matter or advertising issued by FF (including in the Design Brief), and any descriptions or illustrations contained in FF’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them (unless otherwise stated as being a Final Deliverable in a Design Brief). They shall not form part of the Contract or have any contractual force.
3.5 These Terms apply to the Contract to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3.6 The provision of a Project Proposal by FF shall not constitute an offer. Any Project Proposal is only valid for a period of 3 months from its date of issue, after which time it will automatically lapse unless otherwise stated by FF in writing and entirely at its own discretion.
4. SUPPLY OF SERVICES
4.1 In consideration for the payment of the Fees (as set out in the Order) to FF by the Customer, FF shall supply the Services to the Customer in accordance with the Order in all material respects.
4.2 FF shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 FF reserves the right to amend the Order if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and FF shall notify the Customer in any such event.
4.4 FF warrants to the Customer that the Services will be provided using reasonable care and skill. FF further warrants that its design work is original and that FF will not knowingly infringe the Intellectual Property Rights of a third party (though the Customer accepts that FF is under no obligation to make any enquiries or investigation in this respect).
4.5 FF shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services.
4.6 When required as part of the Services, FF may advise on implementation based upon normal production methods and techniques (based on information provided by the Customer). FF gives no warranty or representation concerning the performance of any packaging, printed material or digital display. The Customer accepts that FF is not responsible for the production of packaging, printed material or digital display and that full responsibility for these elements remain with the Customer unless expressly stated in the Order. Failure to consult FF on implementation may result in unsatisfactory results, for which FF accepts no responsibility.
4.7 In the case of electronically displayed designs, the Customer acknowledges that it may need to obtain relevant licences for the use of proprietary software, and FF accepts no responsibility for the Customer’s failure to do so.
5. AMENDMENT TO ORDER
5.1 If the Customer requests that a material change is made to the Order after it has been accepted by FF, FF may elect in writing within 10 Business Days:
(a) to implement the change (and vary the Contract accordingly), and to provide a revised Project Proposal which incorporates the change, stating the effect the changes will have on the Order, including (but not limited to) any time estimates and fees; or
(b) not to implement the change but instead prepare an amended Project Proposal setting out alternative proposals. The amended Project Proposal will state the effect that the changes will have on the Project Proposal, including (but not limited to) any time estimates and fees, and will be required to be signed by the Customer (the signature of which will terminate the Contract and constitute a new Order); or
(c) refuse the change.
5.2 The parties may decide to implement a change proposed pursuant to clauses 5.1 (a) or (b) within 10 Business Days by the Customer signing a revised Project Proposal.
5.3 If the Customer requests that a minor change is made to the Order after it has been accepted by FF, FF may elect (at its discretion) to:
(a) negotiate and agree the minor change to the Order by email, at which point the Order and the Services to be provided by FF pursuant to these terms and conditions shall be varied accordingly; or
(b) consider that the requested amendment is significant (and not minor), and follow the procedure set out in clause 5.1 above.
5.4 If either Party does not agree to implement a proposed change FF shall continue to provide the Services as set out in the Order without implementing the proposed change.
6. CUSTOMER'S OBLIGATIONS
6.1 The Customer shall:
(a) pay the Fees on time as and when they fall due, as set out in clause 7 and the Order;
(b) ensure that the terms of the Order and any information it provides to FF to enable it to prepare the Project Proposal are complete and accurate;
(c) co-operate with FF in all matters relating to the Services;
(d) provide FF with such information and materials as FF may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects. The Customer understands and accepts that FF will rely on the accuracy and completeness of the information concerning the Customer’s goods/services, the Services (including the scope of use required), the market and other relevant information that is provided by the Customer in relation to the Services. The Customer accepts that FF shall not be responsible for any issues arising from errors, omissions or shortcomings in any such information;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(f) unless a specific time frame within which the customer’s response is to be made has been expressly agreed in the Order, the Customer shall respond promptly to any request by FF for information, approval or sign off to any particular stage, and in any event, no later than 5 Business Days from the dates of such request.
6.2 If FF’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (a “Customer Default”):
(a) without limiting or affecting any other right or remedy available to it, FF shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays FF’s performance of any of its obligations;
(b) FF shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from FF’s failure or delay to perform any of its obligations as set out in this clause 6; and
(c) the Customer shall reimburse FF on written demand for any costs or losses sustained or incurred by FF arising directly or indirectly from the Customer Default.
7. FEES AND PAYMENT
7.1 The Fees for the Services shall be set out in the Order. The Fee only includes FF’s fee unless otherwise stated in the Order. Any and all other costs, such as (but not limited to) equipment rental, photographers’ fees, font and/or artwork licences, music licences, hosting fees or other expenses incurred by FF will be in addition to the Fees unless otherwise provided for in the Order.
7.2 FF shall charge additional Fees for any time worked outside the hours referred to in the Order. The Order shall set out the rate at which any additional Fees will be charged, and shall be payable by the Customer in the same manner as the Fees specified in the Order.
7.3 FF reserves the right to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period.
7.4 FF shall invoice the Customer at the times and/or in such instalments as specified in the Order.
7.5 The Customer shall pay each invoice submitted by FF within 30 days of the date of the invoice unless otherwise provided in the Order; and in full and in cleared funds to a bank account nominated in writing by FF. Time for payment shall be of the essence of the Contract.
7.6 All amounts payable by the Customer under the Contract are exclusive of VAT. Where any taxable supply for VAT purposes is made under the Contract by FF to the Customer, the Customer shall, on receipt of a valid VAT invoice from FF, pay to FF 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.
7.7 If the Customer fails to make a payment due to FF under the Contract by the due date, then, without limiting FF’s remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.8 Payments will be credited first to late payments and next to unpaid balances. The Customer shall be responsible for all collection or legal fees necessitated by lateness of or defaults in payments.
7.9 FF reserves the right to withhold delivery and any transfer of ownership of any current work until all sums due are paid in full, together with any interest. All grants of any licence to use any intellectual property rights under the Contract are conditional upon receipt of all payments due under the Contract.
7.10 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.11 For new customers, FF may, at its discretion, invoice up to 100% of its Fees and/or costs (as set out in the Order) in advance of commencing work, and FF reserves the right not to commence work until this has been settled.
7.12 If more than one design is chosen by the Customer and this was not provided for in the Order, an additional fee may be payable by the Customer, and FF will advise the Customer of this additional fee before it is incurred.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 In consideration of the Customer paying the Fees to FF in accordance with clause 7, and subject to the Customer’s sign-off of the Final Deliverable, FF shall grant to the Customer a perpetual exclusive, non-transferable, royalty-free licence to use the Project IP. For the avoidance of doubt, FF IP not forming part of the Final Deliverable (for example relating to works produced by FF in providing the Services but not chosen by the Customer as part of the Final Deliverable) shall not be licenced to the Customer by FF.
8.2 For the avoidance of doubt, no Project IP or FF IP shall be transferred or assigned to the customer as a result of this Contract.
8.3 Customer IP shall remain the sole property of the Customer. The Customer hereby grants FF an irrevocable, non-exclusive, non-transferable licence to use, reproduce, modify, display and publish such content solely in connection with FF’s performance of the Contract, and for marketing and publicity under clause 14.6.
8.4 The Customer warrants that FF’s possession and use of the Customer IP shall comply with all applicable laws, regulations, industry standards and codes of practice in the jurisdictions in which the Final Deliverable will be used, and not infringe the Intellectual Property Rights of any third party.
8.5 In the case of Third Party Materials it is the intention of the parties for the Customer to receive a direct non-exclusive licence of such Third Party Materials. FF shall notify the Customer as to whether such Third Party Materials are capable of being licensed to the Customer by the third party, and if so, the terms and the cost of such licence.
9. DATA PROTECTION
The Parties shall at all times comply with their obligations under Data Protection Legislation to ensure that any personal data they control or process remains confidential. Personal data will only be used for a permitted purpose and for a reasonable time, subject to any legal or regulatory requirements.
10. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
10.1 FF has obtained insurance cover in respect of its own legal liability for individual claims. The limits and exclusions in this clause reflect the insurance cover FF has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
10.2 References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.3 Nothing in this clause 10 shall limit the Customer's payment obligations under the Contract.
10.4 Nothing in these terms and conditions shall limit or exclude FF’s or the Customer’s liability for death or personal injury caused by its negligence, or fraud or fraudulent misrepresentation.
10.5 Subject to clause 10.4, FF’s total liability to the Customer for all loss or damage shall not exceed the greater of:
(a) the Fees payable to FF pursuant to the Contract; or
(b) the amount recovered by FF from its insurer in relation to the claim.
10.6 FF shall not be liable for any of the following types of loss:
(a) loss of profits.
(b) loss of sales or business.
(c) loss of agreements or contracts.
(d) loss of anticipated savings.
(e) loss of use or corruption of software, data or information.
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
10.7 FF shall not be responsible for any errors apparent in artwork, copies or proofs that have been supplied to the Customer in advance of commencement of the Services, or signed off by the Customer.
10.8 FF has given commitments in clause 4 as to compliance of the Services with the Order. In view of these commitments, the terms implied by sections 3 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.9 This clause 10 shall survive termination of the Contract.
11. COMPLAINTS
11.1 If at any stage the Customer is not satisfied with the Services being provided by FF pursuant to the Contract, the matter shall be dealt with in the following manner:
11.1.1 Stage 1: The Customer will, in the first instance, notify FF by email of its dissatisfaction, with a detailed explanation of why the Customer considers the Services to be unsatisfactory. Within 5 Business Days of receipt of such notification FF will either:
(i) if FF agrees with the Customer’s concerns, respond to the Customer’s email with a proposal on how FF will rectify the issue. If the proposal is not satisfactory to the Customer proceed to Stage 2; or
(ii) if FF disagrees with the Customer, respond to the Customer’s email explaining why it disagrees with the Customer’s view and asking the Customer to reconsider its view. If the Customer remains dissatisfied, proceed to Stage 2.
11.1.2 Stage 2: if the matter has not been resolved in accordance with Stage 1 above, FF and the Customer shall use their best efforts for a period of up to two weeks to attempt to find a satisfactory resolution. If the parties cannot resolve the matter in that period, refer to clause 12 (termination).
11.2 For the avoidance of doubt, sign-off by the Customer of any works produced by FF in accordance with the Order or any produced Design Brief shall be taken as acceptance of the quality of the Service provided up until that date. The Customer shall not be entitled to raise a complaint for any works that have been signed-off by the Customer.
12. TERMINATION
12.1 Without affecting any other right or remedy available to it, FF may terminate the Contract in accordance with clause 5.1(b).
12.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term 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 to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.3 Without affecting any other right or remedy available to it, FF may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment and such amount remains outstanding for a period of 14 days after its due date for payment; or
(b) there is a change of control of the Customer; or
(c) the continued association of FF with the Customer, or any particular project to which the Services relate, is or may be damaging to the goodwill and reputation of FF.
13. CONSEQUENCES OF TERMINATION
13.1 On termination of the Contract the Customer shall immediately pay to FF all of FF’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, FF shall submit an invoice, which shall be payable by the Customer immediately on receipt;
13.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
14. GENERAL
14.1 Force majeure. FF shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances FF shall be entitled to a reasonable extension of time for performing such obligations, provided that if the period of delay or non-performance continues for one month, the Customer may (at its option) terminate the Contract by giving 30 days’ written notice to FF.
14.2 Non-Solicitation. During the term of this Contract, and for a period of 6 months thereafter the Customer agrees not to solicit, recruit, engage or otherwise employ or retain any staff of FF.
14.3 No Partnership. Nothing in these terms and conditions is intended to, or shall be deemed to, establish any partnership or joint venture between FF and the Customer.
14.4 Assignment and other dealings.
(a) FF may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
14.5 Confidentiality.
(a) Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.5(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, 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, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 14.5; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
14.6 Publicity and Examples. When the Services are in the public domain, FF shall have rights of reasonable publicity, and if so requested, the Customer shall provide FF with free samples of the completed artwork to use as FF sees fit.
14.7 Entire agreement.
(a) The Contract 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.
(b) The Customer acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. The Customer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
14.8 Variation. Except as set out in these terms and conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.9 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.10 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 possible 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 a provision or part-provision under this clause 14.10 shall not affect the validity and enforceability of the rest of the contract.
14.11 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or if sent by email to the address specified in the Order.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting; or
(iii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 14.11(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 14.11 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
14.12 Third party rights.
No third party has or shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this contract. Nothing in these terms and conditions shall confer, or purport to confer, on any other third party any benefit or the right to enforce any provision of these terms and conditions.
14.13 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.
14.14 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.
Schedule 1 DEFINITIONS AND INTERPRETATION
1. The following definitions apply in this Agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 3.2.
Contract: means a contract for the purchase of and provision of Services, consisting of an Order and these Terms, as explained in clause 3.
Customer: the person or firm who purchases Services from FF.
Customer Default: has the meaning set out in clause 6.2.
Customer IP: means any and all Intellectual Property Rights owned, created or controlled by the customer prior to the Contract.
Design Brief: a design brief that may be prepared by FF that more particularly describes the Services to be provided pursuant to the Contract.
Fees: the fees payable by the Customer for the supply of the Services in accordance with clause 7 and the Order.
Final Deliverable: the deliverable specified in the Order (which may be more particularly described in the Design Brief) as the last deliverable to be supplied to the Customer by FF pursuant to the Contract.
FF: means Mark Horton trading as Mark Horton/Friday Freelancer.
FF IP: means any and all Intellectual Property Rights (that are not Project IP) owned, created or controlled by FF prior to or during performance of the Services (insofar as they do not relate to the Final Deliverable) or falling outside the scope of the Services.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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: the Customer's order for Services by its selection of an ‘option’ and signature of the Project Proposal.
Project IP: means any and all Intellectual Property Rights in the Final Deliverable specifically created by FF in connection with the Services.
Project Proposal: the description of potential options and service packages quoted by FF, and provided in writing by FF to the Customer.
Services: the services (chosen by the Customer) to be supplied by FF to the Customer and as set out in the Order.
Terms: The terms of business of FF set out in this document.
Third Party Materials: works or materials authored, created or performed by a third party which is incorporated into the Services and/or Final Deliverable.
2. The following rules of interpretation apply in these Terms:
a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
b) A reference to a party shall include any company, corporation or other body corporate, wherever and however incorporated or established, and any individual.
c) Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
d) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
e) A reference to writing or written does not include fax.
f) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
g) Any obligation in these Terms on a person not to do something includes an obligation not to agree or allow that thing to be done.
a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
b) A reference to a party shall include any company, corporation or other body corporate, wherever and however incorporated or established, and any individual.
c) Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
d) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
e) A reference to writing or written does not include fax.
f) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
g) Any obligation in these Terms on a person not to do something includes an obligation not to agree or allow that thing to be done.