The following terms as used herein shall have the meaning as
stated:
"Brief" means the Company's written acknowledgment of
the Client's instructions to the Company to undertake work for
the Client;
"Charges" means the Company's charges for supplying
the Deliverables to the Client which are referenced in the
Brief;
"Company" means Peachtree (UK) Limited;
"Confidential Information" means any information
disclosed by one (the disclosing party) to another (the
receiving party) if the disclosing party has notified the
receiving party that the information is confidential, or the
information could reasonably be supposed to be confidential,
which, for the avoidance of doubt, includes all Output
Material;
"Conditions" means these Conditions of Supply;
"Contract" means a Contract between the Company and
the Client, as evidenced by the Brief;
"Client" means the party named as the Client in the
Brief;
"Deliverables" means the Design, the Output Material
and the Services;
"Design" means the design to be produced by the
Company for the Client in accordance with the Contract;
"Input Material" means any documents, files, plans,
drawings, designs, content, text, images, logos, photographs
or other materials, and any specification, data or other
information provided by the Client to the Company relating to
the Design and/or the Services;
"Intellectual Property Rights" means any design
rights, utility models, patents, inventions, logos, business
names, trademarks, domain names, copyright, moral rights,
rights in databases, source codes, reports, drawings,
specifications, know how, trade secrets, rights in software,
rights in the nature of unfair competition and the right to
sue for passing off and any other equivalent or similar rights
to any of the foregoing in any jurisdiction, whether
registered or unregistered;
"Output Material" means any design, documents, files,
plans, drawings, designs, content, text, images, logos,
photographs or other materials, and any specification, data or
other information provided by the Company to the Client
relating to the Design and/or the Services;
"Personal Data" shall have the meaning ascribed to it
in the Data Protection Act 1998;
"Services" means the packaging design services
referenced in the Brief (including any part or parts of them)
and any other design services to be provided by the Company in
accordance with the Contract (including any part or parts of
them);
"Third Party Contractor" means any third party
engaged by the Client to undertake any services or supply any
goods to the Client, including any model maker, manufacturer
or supplier;
A reference to a clause is to a clause of these Conditions.
Clause headings shall not affect the interpretation of these
Conditions.
Any reference to "parties" means the parties to the Contract and
"party" shall be construed accordingly.
A reference to a particular law is a reference to it as it is in
force for the time being taking account of any amendment,
extension, application or re-enactment and includes any
subordinate legislation for the time being in force made under it.
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.
Words in the singular include the plural and in the plural
include the singular.
Application of Conditions:
No Contract shall come into existence other than in accordance
with the Brief.
The Contract shall be governed by these Conditions to the
exclusion of any other terms or conditions.
No amendment of these Conditions or variation to the Contract
shall be valid unless agreed in writing by the parties hereto.
Obligations of the
parties:
The Company warrants (subject to the other provisions of these
Conditions) that the Services will be performed with reasonable
skill and care.
The Company's liability pursuant to clause 3.1 shall be limited
to re-performing any Services found not to have been performed
with reasonable skill and care, provided that the failure of or
defect in the Services is notified to the Company within 72 hours
from completion of performance; otherwise, the Services shall be
deemed to be satisfactory.
The Company's obligations to the Client under the Contract shall
be limited to supplying the Deliverables to the Client in
accordance with the Contract and any changes, alterations or
additions to the Deliverables or any related materials will be
charged at the Company's applicable rates. Any errors,
inaccuracies, omissions or delays occasioned by the Client and/or
any errors or amendments which are not corrected or made by the
Client within any timeframe stipulated by the Company will also
incur additional charges.
The Services will be performed in separate stages and invoiced
upon the completion of each stage, as outlined in the Brief.
Any performance timescales given by the Company are estimates
only and the Company shall not be liable for any delay in
performing or completing the Services, unless the Company has
agreed in writing to abide by any specific performance or
completion date(s).
All obligations of the Company under the Contract shall be
deemed to have been fulfilled and the Services deemed to have been
completed and accepted by the Client upon delivery of the Design
to the Client.
The Client shall be solely responsible for undertaking suitable
product testing in order to ensure that the Design (or any product
embodying or incorporating the Design) is fit for purpose and for
putting in place appropriate product liability insurance.
The Company shall have no liability for any deviation from any
Design occasioned by the Client or any Third Party Contractor, nor
shall the Company be liable for the advice, actions or workmanship
of any Third Party Contractor, nor for any materials provided or
used by any Third Party Contractor, nor for the consequences of
any delay or inaction of any Third Party Contractor. The Client
shall hold the Company harmless and shall fully and promptly
indemnify the Company against all liabilities, costs, damages and
expenses which the Company may incur as a result of any matter
identified in this clause 3.8.
The Company shall have the right to publicise the Company's
association with the Client and to use for promotional purposes
any description, illustration or photograph of the Design (or any
product embodying or incorporating the Design) immediately
following the publication of the Design (or any product embodying
or incorporating the Design) in the public domain.
Where the Services include website design services, a design
credit with a link to the Company's website shall also appear on
all pages of the website designed by the Company, either in text
or graphic format. The link will be designed to fit the overall
look and feel of the website designed by the Company.
The Client shall not, without the prior written consent of the
Company, whether acting on the Client's own account, on behalf of,
or with any other person (including any person which the Client
directs to act on its behalf), at any time from the date of first
provision of the Services to the expiry of 6 months after the last
date of supply of the Services, solicit or entice away from the
Company or employ (or attempt to employ) or otherwise engage or
attempt to engage the services of any person who is, or has been,
engaged as an employee, consultant or subcontractor of the Company
in the provision of the Services.
Any consent given by the Company in accordance with clause 3.11
shall be subject to the Client paying to the Company a sum
equivalent to 20 % of the then current annual remuneration of the
Company's employee, consultant or subcontractor as aforesaid.
Charges and Payment:
The Charges, costs, disbursements and expenses payable under the
Contract shall be those which are referenced in the Brief or
subsequently notified to the Client and all such Charges, costs,
disbursements and expenses are exclusive of Value Added Tax or any
similar tax.
The Charges, costs, disbursements and expenses payable under the
Contract shall be paid in such amounts and at such times as are
stipulated by the Company. Time for payment shall be of the
essence.
Should the Client fail to make any payment due under the
Contract, then the Company shall have the right to deem such
failure to be a repudiation of the Contract (in which case it
shall so inform the Client in writing) and without prejudice to
any other right or remedy, the Company may:
terminate the Contract and recover from the Client damages
for any loss suffered by the Company as a result of such
termination; and/or
cancel any other contract or the remainder of any other
contract which the Company may have with the Client and
recover from the Client damages for loss suffered by the
Company as a result of such cancellation; and
claim interest from the due date on the unpaid amount at the
annual rate of 5 % above the London Interbank Offered Rate
(LIBOR), accruing on a daily basis until payment is made,
whether before or after any judgment; or
claim interest from the due date on the unpaid amount
accruing on a daily basis at the rate prescribed by the Late
Payment of Commercial Debts (interest) Act 1998;
claim late payment fees with respect to the unpaid amount;
and
suspend any further work under the Contract or any other
contract until payment is made in full and in addition the
Company may, by notice in writing to the Client, treat any
such contract as repudiated by the Client and recover all
losses and expenses suffered by the Company as a result of
such repudiation.
Intellectual
Property Rights, Confidentiality and Data Protection:
The Client shall provide the Company with all Input Material and
with all information, access, facilities, co-operation and support
that may be required to enable the Company to discharge its
obligations under the Contract. The Client shall ensure that all
Input Material and all other required information is correct,
accurate and complete and is promptly submitted to the Company. No
liability shall be accepted by the Company for any errors,
inaccuracies or omissions in any Input Material or in any required
information, nor shall any liability be accepted for any failure
to include any such Input Material or information due to any delay
occasioned by the Client.
The Client grants the Company permission to utilise all Input
Material in any manner in which the Company deems fit for the
purposes of performing its obligations under the Contract. The
Client warrants that all Input Material belongs to or is validly
licensed to the Client and that any and all use made thereof and
work done in accordance with the Client's instructions shall not
infringe any Intellectual Property Rights of any third party. The
Client shall hold the Company harmless and shall fully and
promptly indemnify the Company against all liabilities, costs,
damages and expenses which the Company may incur as a result of
any and all use made thereof and/or work done as aforesaid which
infringes any third party Intellectual Property Rights.
The Client further warrants that no Input Material shall be
illegal, offensive, abusive, indecent, defamatory or obscene and
agrees to fully and promptly indemnify the Company against any
claim arising from any use thereof.
Any and all Intellectual Property Rights (howsoever existing or
arising), in relation to the Deliverables shall at all times vest
in and belong solely and exclusively to the Company.
The Client acknowledges the Company's ownership of any and all
Intellectual Property Rights in the Deliverables and agrees not to
contest the Company's ownership or use of any such Intellectual
Property Rights.
Output Material may only be copied, reproduced, published or
distributed:
with the prior written consent of the Company;
subject to such restrictions as the Company may require;
and
on condition that the Company shall be given full credit for
any Output Material which is copied, reproduced, published or
distributed in accordance with this clause 5.6.
No licence to any Intellectual Property Rights in the
Deliverables shall be granted to or implied in favour of the
Client other than in accordance with the provisions of clause 5.8,
below. For the avoidance of doubt, the Client agrees that it will
not transfer or assign any rights or interest in the Deliverables
without the Company's prior written consent.
Subject to the prior payment to the Company of all Charges,
costs, disbursements and expenses under the Contract, the Company
grants the Client a non-exclusive, revocable, non-transferable,
non-assignable and personal licence to make use of the
Deliverables in accordance with the Contract. All Intellectual
Property Rights arising from the exercise of this licence by the
Client shall vest in and belong solely and exclusively to the
Company.
For the avoidance of doubt and unless otherwise agreed in
advance in writing by the Company, the licence granted to the
Client pursuant to clause 5.8 shall not entitle the Client to
amend or vary the Design, or add anything to or remove anything
from the Design, or substitute any other design or material for
the Design, in whole or in part.
If the Company agrees in writing to permit the Client to do any
of the things proscribed by clause 5.9, all Intellectual Property
Rights arising from the doing of any of those things shall vest in
and belong solely and exclusively to the Company and the Client
shall pay any royalties and other payments requested by the
Company and shall take any other action that the Company
reasonably deems necessary in connection therewith, at the
Client's own cost.
The provisions of clauses 5.7, 5.8, 5.9 and 5.10 shall apply to
the Client without limitation where the Client is to enter into a
contract with a Third Party Contractor. The Client shall
additionally (subject always to the requirements of clause 5.15)
notify the Third Party Contractor of the aforesaid restrictions
placed upon the Client and shall ensure that the Third Party
Contractor abides by those restrictions.
Without limiting the provisions of clause 5.4, the Company
retains the right in all cases to use the Deliverables in any
manner, at any time and in any part of the world (subject to any
particular limitation, if any, previously agreed by the Company
and then only to the extent of that limitation), for the purposes
of advertising or otherwise promoting the Company's work and in
order to provide services similar or identical to the Services to
third parties.
The Client and the Company agree that in the course of the
Company supplying the Deliverables to the Client the parties will
disclose to each other certain Confidential Information. The
Client and the Company agree that each party will maintain the
Confidential Information's confidentiality and not disseminate it
to any third party without the disclosing party's prior written
consent, save that this obligation shall not apply to any
Confidential Information that either party has a duty (whether
legal or otherwise) to communicate or that is in the public domain
or is already in the receiving party's possession through no fault
of the receiving party. Neither party shall use any Confidential
Information for any purpose other than the discharge of its
obligations under the Contract. For the avoidance of doubt, the
Client shall not use or exploit any of the Confidential
Information of the Company in any manner not approved by the
Company.
The prior written consent of the Company to the disclosure of
Confidential Information shall be required in accordance with
clause 5.13 where the Client is to enter into a contract with a
Third Party Contractor and the Client shall subject the Third
Party Contractor to like obligations of confidentiality to those
set out in clause 5.13 prior to entering into the contract with
the Third Party Contractor.
The Client acknowledges that disclosure or use of Confidential
Information in violation of clauses 5.13 or 5.14 could cause
irreparable harm to the Company for which monetary damages may be
difficult to ascertain or may be an inadequate remedy. The Client
therefore agrees that the Company will have the right, in addition
to its other rights and remedies, to seek and obtain injunctive or
other equitable relief for any breach or anticipated breach of
clauses 5.13 and/or 5.14.
The Client warrants that it has the legal right to disclose all
Personal Data that it discloses to the Company under the Contract
and that the processing of any such Personal Data by the Company
for the purposes of and in accordance with the terms of the
Contract will not breach any applicable laws (including the Data
Protection Act 1998).
Warranties, Liability
and Indemnity:
Except for the warranty given by the Company in clause 3.1, all
other conditions, warranties, or other statements whatsoever
concerning the Contract, whether express or implied, by statute,
at common law or otherwise howsoever (save for the conditions
implied by section 12 of the Sale of Goods Act 1979 and section 2
of the Supply of Goods and Services Act 1982) are, to the fullest
extent permitted by law, excluded from the Contract.
Subject to the other provisions of these Conditions, the Company
shall not be liable for any direct, indirect or consequential loss
(all three of which terms include, without limitation, pure
economic loss, loss of profits, loss of business, depletion of
goodwill and similar loss), costs, damages, charges or expenses
caused directly or indirectly by any delay in the performance of
the Services (even if caused by the Company's negligence), nor
shall any delay entitle the Client to terminate the Contract
unless such delay exceeds 180 days.
Nothing in these Conditions shall exclude or limit the liability
of the Company:
for death or personal injury caused by the Company's
negligence; or
under section 2(3), Consumer Protection Act 1987; or
for any matter which it would be illegal for the Company to
exclude or attempt to exclude its liability; or
for fraud or fraudulent misrepresentation.
Subject to clause 6.3, in no event shall the Company be liable
to the Client for any increased costs or expenses; for any loss of
profits, business, contracts, revenues or anticipated savings; for
any loss or corruption of or damage to any data, files or
software; or for any special, indirect or consequential damages,
in each case howsoever arising.
Subject to clauses 6.3 and 6.4, the Company's total liability in
contract, tort (including negligence or breach of statutory duty),
misrepresentation, restitution or otherwise, arising in connection
with the performance or contemplated performance of the Company's
obligations hereunder shall be limited to the amount of the
Charges paid by the Client.
The Client shall hold the Company harmless and keep the Company
indemnified in full against all direct, indirect or consequential
liabilities (all three of which terms include, without limitation,
loss of profit, loss of business, depletion of goodwill and like
loss), loss, damages, injury, costs and expenses (including legal
and other professional fees and expenses) awarded against or
incurred or paid by the Company as a result of or in connection
with any claim made by or against the Company in respect of any
liability, loss, damage, injury, cost or expense sustained by the
Company or by any third party to the extent that such liability,
loss, damage, injury, cost or expense arises directly or
indirectly from the Client's instructions to the Company, or from
the Client's fraud, negligence, failure to perform or breach or
delay in the performance of any of its obligations hereunder,
subject to the Company confirming such costs, charges and losses
to the Client in writing.
Termination:
The Contract shall continue in force until such time as each
party shall have discharged its respective obligations thereunder,
but either party may earlier terminate the Contract at any time by
notice in writing to the other party, such notice to take effect
forthwith:
if the other party is in material or persistent breach of
the Contract and in the case of a breach capable of remedy,
the breach is not remedied within 14 days of the other party
receiving written notice specifying the breach and requiring
it to be remedied; or
if the other party becomes insolvent or enters into
bankruptcy or if an order is made or a resolution is passed
for the winding up of the other party (other than voluntarily
for the purpose of solvent amalgamation or reconstruction) or
if an administrator, administrative receiver or receiver is
appointed in respect of the whole or any part of the other
party's assets or business, or if the other party makes any
composition with its creditors or takes or suffers any similar
or analogous action in consequence of debt.
Upon termination or expiration of the Contract for whatever
reason, the Client shall immediately:
pay to the Company all of the Company's outstanding unpaid
invoices and interest and, in respect of Deliverables supplied
but for which no invoice has been submitted, the Company may
submit an invoice, which shall be payable immediately on
receipt; and
deliver to the Company all Output Material and any other
property of or relating to the Company which may then be in
the possession or under the control of the Client.
Termination of the Contract shall be without prejudice to any
other rights or remedies a party may be entitled to hereunder or
at law and termination or expiration of the Contract shall not
affect any accrued rights or liabilities of either party nor the
coming into or continuance in force of any provision hereof which
is expressly or by implication intended to come into or continue
in force on or after such termination or expiration.
Force Majeure:
The Company reserves the right to defer the date of provision of
the Deliverables, or to terminate the Contract (without liability
to the Client) if it is prevented from, or delayed in, the
performance of its obligations under the Contract (wholly or in
part) due to circumstances beyond the reasonable control of the
Company including Acts of God, governmental actions, war or
national emergency, acts of terrorism, protests, riot, civil
commotion, fire, explosion, flood, epidemic, lock-outs, strikes or
other labour disputes (whether or not relating to either party's
workforce), or restraints or delays affecting carriers, or adverse
weather conditions, or any inability or delay in obtaining
supplies of adequate or suitable materials, or the failure or
demise of any source of supply.
General:
The Contract constitutes the entire Contract between the parties
with respect to its subject matter and supersedes all prior and
contemporaneous agreements and understandings between the parties.
No forbearance or indulgence granted by the Company to the
Client shall in any way limit any right of the Company under these
Conditions.
Any notice required or permitted to be given by either party to
the other under these Conditions shall be in writing addressed to
that other party at its registered office or principal place of
business.
The Company, but not the Client, shall be entitled at its
discretion to perform any of the obligations assumed by it and to
exercise any of its rights granted to it under the Contract
through any other company or entity.
Neither the Company nor the Client intends that any term of a
Contract shall be enforceable by virtue of the Contracts (Rights
of Third Parties) Act 1999 by any person that is not a party to
it.
If any provision of these Conditions is held by any competent
authority to be invalid or unenforceable in whole or in part the
validity of the other provisions of these Conditions and the
remainder of the provision in question shall not be affected.
Any dispute arising under or in connection with the Contract
shall be referred to arbitration by a single arbitrator appointed
by Contract or (in default) nominated on the application by either
party to the President for the time being of the Law Society whose
decision as to the type, qualifications and experience of such
arbitrator shall be final and binding on the parties. The costs of
the arbitrator shall be borne by the parties as he directs and his
decision on the issue in dispute shall be final.
The Contract shall be subject to and construed under the laws of
England and Wales and the parties hereby submit to the exclusive
jurisdiction of the Courts of England and Wales for that purpose.