(1) At all material times the Designer is engaged in the business of providing graphic design and branding services to business clients.
(2) The Client wishes to acquire the services of the Designer.
(3) The Designer hereby agrees to provide his services to the Client subject to the terms and conditions of this Agreement.
IT IS AGREED as follows:
- Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
1.2 Unless the context otherwise requires, each reference in this Agreement to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
1.2.4 a Schedule is a schedule to this Agreement;
1.2.5 a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule; and
1.2.6 a “Party” or the “Parties” refer to the parties to this Agreement.
1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.4 Words imparting the singular number shall include the plural and vice versa.
- Engagement of the Designer
2.1 The Client hereby engages the Designer to provide the Work as detailed in Schedule 1 of this Agreement.
2.2 Whether or not the Designer or a Consultant carries out all or any of the Work, the Designer shall be responsible for the quality of the Work and shall ensure that all work is performed with reasonable care and, without limitation, is wholly responsible for ensuring that she and any Consultants performing all or any part of the Work shall do so competently and with reasonable care.
2.3 The Designer shall use all reasonable endeavours to accommodate any reasonable amendments to the logo or branding on three occasions within the 7 days following the submission of the logo or branding to the Client. Each amendment must not exceed more than one hour or change the scope of work detailed in Schedule 1. Any amendments over and above this will be subject to additional fees as quoted by the Designer.
2.4 The Designer may from time to time require the Client’s input or feedback on the Services. The Client shall use all reasonable endeavours to respond with the required feedback within 48 hours unless agreed in writing by all Parties.
2.5 The Designer shall not be liable for any delays in the provision of the Services that may result from the Client’s failure to comply with any of its obligations under this Clause 2 or any other of its obligations arising under this Agreement.
2.6 The Designer shall not be liable for any images, content or intellectual property supplied to it by the Client. If any consents, licences or other permissions are needed from any third parties it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).
2.7 The Designer will provide the output of the Services e.g. logo and branding in the file format specified in Schedule 1. It is the Client’s responsibility to ensure that the formats are sufficient for their needs.
2.8. Upon receipt of full payment of the Fees specified in Schedule 1 the Designer will provide to the Client the output of the Services. Upon handover it is the Client’s responsibility to ensure the same is saved and secured. The Designer will store the output of the Services for a period 6 years from the date of completion and accordingly accepts no responsibility for storing the same beyond that date.
Where the Designer providers copywriting Services:
2.9 the Client notes that the Designer is not a qualified expert in every industry they provide copywriting services for. It is therefore the Client’s sole responsibility to check the factual accuracy of the Services and ensure there are no omissions; and
2.10 Whilst the Designer will try to optimise the content for search engine purposes, they do not warrant that this effort will in any way guarantee results. The Designer cannot be held responsible for any changes to the position of the Client’s website in the search engine results in response to a particular search. The Designer does not guarantee a listing positioning in any search engine.
- Nature of Engagement
3.1 The Designer shall at all times be an independent contractor and the Designer’s Work activities and working methods and those of any Consultant(s) engaged by her on the Work shall at all times be exclusively for the Designer to determine, supervise, direct and control. The Client shall not seek to supervise, direct or control the Designer or any Consultants in the provision of the Work nor shall the Client have any right to do so.
3.2 Subject to the provisions of sub-Clause 3.3, the Designer shall at all times be exclusively responsible for organising, and entitled to organise, where, when, how and in what order the Work is done but shall liaise with the Client (or the Client’s representative) to ensure that due account is taken of the impact of the timing of the Work to be performed upon the activities of the Client and any other contractors, consultants and similar third parties also engaged by the Client.
3.3 The engagement under this Agreement is mutually non-exclusive that is to say that at any time the Designer and any Consultant can provide to other clients services which are the same as or similar to the Work and the Client can engage other contractors to provide it with services which are the same as or similar to the Work.
3.4 The Designer in its complete discretion on one or more occasions may substitute any Consultant for herself or for any other Consultant engaged on the Work or may engage any additional Consultant provided that any Consultant chosen by the Designer has requisite skills and experience to perform the Work. The Designer shall use all reasonable endeavours to avoid or minimise such changes or additions and to consult with the Client beforehand about any such proposed change in engagement of persons carrying out the Work. However, the Designer shall in any event provide such a substitute or addition where the provision of the Work is unduly delayed by absence due to incapacity or for any other reason upon notification by the Client (or the Client’s representative) that a delay is unacceptable or where it is otherwise necessary to provide such a substitute or addition. The Client shall only be entitled to refuse to accept any Consultant if in its reasonable opinion they are not suitable due to lack of skills, or experience.
3.5 Any act or omission of any Consultant shall, for the purposes of this Agreement, be deemed to be an act or omission of the Designer.
3.6 Whenever possible and practicable, the Designer shall use his own equipment, materials and resources to carry out the Work.
3.7 The Designer is not obliged to make its services available except for the performance of its obligations under this Agreement. The engagement and appointment of the Designer under this Agreement to provide the Work does not create any mutual obligations on the part of the Client or the Designer to offer or accept any further contract, engagement or services. No continuing relationship shall hereby be created or implied.
- Self-Employment Status of the Designer
4.1 The Designer shall at all times be an independent contractor and shall have the status of a self-employed person and shall be responsible for all income tax and national insurance contributions or similar taxes or contributions in respect of the consideration payable under this Agreement.
4.2 Nothing in this Agreement shall be deemed to create any partnership, joint venture, agency, or employment relationship between the Parties or any employment relationship between any Consultant and the Client or the Designer.
5.1 In consideration of the Services the Client shall pay to the Designer the Fee as detailed in Schedule 1.
5.2 All Fees under this Agreement shall be expressly exclusive of any value added tax chargeable thereon.
5.3 Payment shall be made in Great British Pounds “GBP” by bank transfer to the Designer’s bank account which she shall nominate from time to time. Any banking transfer Fee, whether sending or receiving, will be the Client’s sole responsibility.
5.4 Any sums which remain unpaid following the expiry of the invoice period shall incur interest on a daily basis at 8% above the base rate of the Bank of England from time to time until payment is made in full of any such outstanding sums.
- The Work and Intellectual Property
6.1 All Intellectual Property Rights subsisting in materials provided by the Client shall at all times remain the property of the Client (or its licensors, as appropriate). Nothing in this Agreement shall vest any rights in any material provided by, or otherwise belonging to the Client (or its licensors, as appropriate) in the Designer. The Client hereby grants to the Designer a limited, non-exclusive, non-transferable, revocable, worldwide licence to use any and all Required Information, Required Materials and any other Client Materials for the purposes of providing the Editing & Proofreading Services in accordance with this Agreement.
6.2 The Designer shall retain the ownership of any and all Intellectual Property Rights that may subsist in the processes used or anything produced by the Designer that is used in the course of the Designer’s business for providing the Services. The Designer shall be deemed to automatically grant a royalty-free, non-exclusive licence of any and all such rights to the Client to use the same in accordance with the terms of this Agreement and the Services.
6.3 Upon receipt in full by the Designer of all sums due for a given Period under Clause 5 and Schedule 1, the copyright and any and all other Intellectual Property Rights subsisting in Services created by the Designer during that Period shall be assigned to the Client and the Designer shall be deemed to have waived any and all moral rights in respect of the same. The Designer shall execute all documents and take all actions necessary or reasonably requested by the Client to document, obtain, maintain, perfect or assign its rights in such content.
6.4 Once assigned the Client hereby grants a royalty-free, non-exclusive licence to the Designer which shall continue after the termination of this Agreement, to use any of the Services Works in promotional material. The Client may revoke the licence by giving the Designer notice in writing of not less than 30 days’.
- Warranties and Indemnity
7.1 The Designer, and any Consultant(s) engaged by the Designer (whether or not named in Schedule 1) shall have the requisite skill and experience to carry out the Work.
7.2 The Designer shall use all commercially reasonable endeavours to ensure that the Work is original to the Designer and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity or any other rights whatsoever of any person.
7.3 The Designer hereby warrants that copyright in the Work shall, throughout the full period of copyright protection be valid and subsisting pursuant to the laws of the United Kingdom and the provisions of the Berne Convention and the Universal Copyright Convention.
7.4 The Designer shall not assign, licence, transfer, encumber or otherwise dispose of any rights of copyright or any other rights in or to the Work except pursuant to this Agreement.
7.5 Subject to the provisions of sub-Clause 7.7, in the event of any actions, proceedings, claims, demands or costs (including, without prejudice to the generality of this provision, the legal costs of the Client on a solicitor and own-client basis) against the Client on the grounds that the Designer’s provision of the Work or the Client’s use, possession and/or ownership of the Work in accordance with this Agreement constitutes the infringement of any Intellectual Property Rights belonging to a third party, the Designer shall indemnify the Client from and against the same.
7.6 Subject to the provisions of sub-Clause 7.7, in the event of any actions, proceedings, claims, demands or costs (including, without prejudice to the generality of this provision, the legal costs of the Designer on a solicitor and own-client basis) against the Designer on the grounds that the Designer’s use or possession of any materials provided to it by the Client for the purposes of providing the Work in accordance with this Agreement constitutes the infringement of any Intellectual Property Rights belonging to a third party, the Client shall indemnify the Designer from and against the same.
7.7 The indemnities set out in sub-Clauses 7.5 and 7.6 shall apply only if the indemnified Party:
7.7.1 notifies the indemnifying Party immediately in writing upon becoming aware of any such action, proceeding, claim, demand or costs;
7.7.2 makes no admissions or any settlements without the indemnifying Party’s prior written consent;
7.7.3 makes all relevant information available to the indemnifying Party upon request;
7.7.4 provides all reasonable assistance to the indemnifying Party upon request; and
7.7.5 allows the indemnifying Party complete control over any relevant litigation and/or settlement.
8.1 This Clause 8 sets out the entire financial liability of the Parties to each other for any breach of this Agreement; any use made by the Client of the Work; and any representation, statement or tortious act or omission (including, but not limited to, negligence and breach of statutory duty) arising out of or in connection with this Agreement.
8.2 Subject to sub-Clause 8.3, neither Party shall be liable to the other, whether in contract, tort (including negligence), restitution, or for breach of statutory duty or misrepresentation for any loss of profit, loss of goodwill, loss of business opportunity, loss of anticipated saving or any special, indirect or consequential damage or loss that may be suffered by the other Party that arises out of or in connection with this Agreement.
8.3 Nothing in this Agreement shall limit the liability of either Party to the other for fraud or fraudulent misrepresentation, for deliberate or wilful misconduct, or for death or personal injury.
8.4 Nothing in this Agreement shall exclude or limit the liability of either Party under or in respect of any of the indemnity provisions of Clause 7.
8.5 Subject to sub-Clause 8.1 and 8.2, each Party’s total liability to the other in respect of any claims arising out of, or in connection with, this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed:
8.5.1 in the case of the Services being provided on a Monthly Retainer basis, the total sums paid or payable by the Client for the Services provided in one calendar month; or
8.5.2 in the case of the Services being provided on a Project basis, the total sums paid or payable by the Client for the Project.
9.1 Both Parties undertake that, except as provided by sub-Clause 9.2 or as authorised in writing by the other Party, they shall at all times during the continuance of this Agreement and for 24 months after its termination:
9.1.1 keep confidential all Confidential Information;
9.1.2 not disclose any Confidential Information to any other party;
9.1.3 not use any Confidential Information for any purpose other than as contemplated by this Agreement;
9.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
9.1.5 ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 9.
9.2 Subject to sub-Clause 9.3, either Party may disclose any Confidential Information to:
9.2.1 any Consultant(s) engaged on the Work;
9.2.2 any of their sub-contractors, substitutes, or suppliers;
9.2.3 any governmental or other authority or regulatory body; or
9.2.4 any of their employees or officers or those of any party described in sub-Clauses 9.2.1, 9.2.2 or 9.2.3.
9.4 Disclosure under sub-Clause 9.2 may be made only to the extent that is necessary for the purposes contemplated by this Agreement, or as required by law. In each case the disclosing Party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body described in sub-Clause 9.2.3 or is an authorised employee or officer of such a body, the disclosing Party must obtain and submit to the other Party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
9.5 Either Party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that Party.
9.6 When using or disclosing Confidential Information under sub-Clause 9.4, the disclosing Party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
9.7 The provisions of this Clause 9 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
- Term and Termination
10.1 This Agreement shall enter into force on the commencement date and shall continue for 12 calendar months (“Initial Term”). Thereafter the Agreement shall continue on a rolling monthly basis. Termination will occur, in the case of a Project by means of completion or in accordance with sub-Clauses 10.3 or 10.4 and in the case of a Monthly Retainer in accordance with sub-Clauses 10.3 or 10.4.
10.2 Where the Services are terminated prior to completion the Client will be liable for the Fees calculated on a time spent basis.
10.3 Either Party may terminate this Agreement at any time by giving to the other not less than 7 days’ written notice.
10.4 Without prejudice to any other right or remedy available to it, either Party may terminate this Agreement forthwith by giving written notice to the other Party in the following circumstances:
10.4.1 any sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within 10 Business Days of the due date for payment;
10.4.2 the other Party commits any other breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 10 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
10.4.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
10.4.5 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
10.4.6 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this Agreement);
10.4.7 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
10.4.8 that other Party ceases, or threatens to cease, to carry on business; or
10.4.9 control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement. For the purposes of this Clause 11, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
10.5 For the purposes of sub-Clause 10.4.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
Effects of Termination
Upon the termination or expiry of this Agreement for any reason:
10.6 any sum owing by either Party to the other under any of the provisions of this Agreement shall become immediately due and payable;
10.7 all licences granted to the Designer by the Client to use Client materials shall terminate immediately;
10.8 the Designer shall, at the Client’s request, either promptly return or destroy all Client materials in its possession and/or control;
10.9 each Party shall (except to the extent referred to in Clause 9) immediately cease to use, either directly or indirectly, any Confidential Information belonging to the other Party and shall at the other Party’s request, either promptly return or destroy all such Confidential Information in its possession and/or control;
10.10 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of this Agreement shall remain in full force and effect;
10.11 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of this Agreement which existed at or before the date of termination; and
10.12 subject as provided in this Clause 10 and except in respect of any accrued rights neither Party shall be under any further obligation to the other.
- Personal Information (Data Protection)
All personal information that the Designer may use will be collected, processed, and held in accordance with the provisions of the Data Protection Act 2018, the UK General Data Protection Regulation (“UKGDPR”) and the Client’s rights under the UKGDPR and any adaptation of the same which the UK implements.
- Force Majeure
12.1 Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party (“Force Majeure”). Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other similar or dissimilar event or circumstance that is beyond the control of the Party in question.
12.2 In the event that a Party to this Agreement cannot perform their obligations hereunder as a result of Force Majeure for a continuous period of 3 months, the other Party may at its discretion terminate this Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all work completed up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of this Agreement.
- Nature of Agreement
13.1 Subject to the provisions of Clause 3.4 entitling the Designer to perform obligations through a Consultant, this Agreement is personal to the Parties and neither Party may assign, mortgage, or charge (otherwise than by floating charge) or sub-license any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the other Party, such consent not to be unreasonably withheld.
13.2 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
13.3 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
13.4 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 a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
The Parties agree that, if one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
15.1 All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
15.2 Notices shall be deemed to have been duly given:
15.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
15.2.2 when sent, if transmitted by e-mail and a return receipt is generated; or
15.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid.
In each case notices shall be addressed to the most recent address or e-mail address notified to the other Party.
- Law and Jurisdiction
16.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
17.2 Subject to the provisions of Clause 16, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
50% Deposit and Balance at the end of Project Basis
- Prior to any work commencing the Client must pay to the Designer a deposit of 50% of the sum detailed in the proposal.
- The remaining balance will be invoiced at the end of the Services with payment falling due within 7 days of receipt of invoice.
- Payment shall be made by bank transfer to the nominated account on the invoice.
- Until such time as full payment is received from the Client the output of the Services will not be provided to the Client or Printer. In the event that such output is provided in draft form or for the Client’s amendment or comment the Client will not be entitled to make use of the same until such time as the balancing payment is made.
By signing the proposal you are signing to agree to these terms and conditions.