In these Terms and Conditions, the following words and expressions will have the following meanings:
‘Completion Date’ – the date specified by us, in the Proposal, when the Project is to be completed; ‘Conditions’ – the terms and conditions of business set out in this document and any other special or additional terms and conditions agreed by us and you in writing before the formation of the Contract; ‘Contract’ – these Conditions, together with the final agreed Proposal and any (and all) other documents, attachments, schedules and/or exhibits attached hereto and/or attached to the final agreed Proposal, and/or incorporated by reference into these Conditions and/or the final agreed Proposal, as agreed and originally executed by you and us or as the same may from time to time be supplemented or amended in accordance with the applicable provisions hereof; ‘Fees’ – the fees quoted by us to you, in the final agreed Proposal, for the Project (but excluding any external/third party supplier or sub-contractor costs, expenses and VAT (in each case, if applicable); ‘Intellectual Property’ – all and any patents, registered trademarks, registered service marks, registered and/or unregistered designs, applications for any of the foregoing, copyright, design rights, database rights, moral rights, unregistered trade marks and names, unregistered service marks and names, domain names, rights in goodwill or to sue for passing off, unfair competition rights, logos, symbols, emblems, insignia, indicia, slogans, confidential information, trade secrets, know-how, inventions, discoveries, improvements, specifications, processes and formulas (in each case, whether or not reduced to writing and whether or not capable of registration or protection), all other legal equivalents throughout the world (in any jurisdiction) and the right to apply for, and pursue and maintain, the legal registration and/or protection thereof; ‘Project’ – the work and/or services which you agree to engage us to carry out in accordance with the Contract;
‘Proposal’ – the written estimate or quotation made or given to you by us relating to the Project including (without limitation) any and all information included (or referred to) therein on the stages, timing, fees and/or expenses of, or relating to, the Project;
‘we’ or ‘us’ – OXOEVE Creative Limited (Company No. 8079390) (Trading address: The Leather Market 11-13, Weston Street, London SE1 3ER); and ‘you’ – the person, firm or company who agrees to engage us to carry out the Project in accordance with, and by entering into, the Contract.
2.1 These Conditions, and the other terms of the Contract, will govern the Project to the exclusion of all other provisions, terms and/or conditions, including (without limitation) any provisions, terms and/ or conditions which you may purport or seek to apply (or rely on) under any standard terms, purchase order, acceptance form, order specification, confirmation of order or any other similar document (or which may otherwise be implied by law, trade custom, practice or course of dealing).
2.2 Subject only to the provisions of Condition 4.7 below, no variation of or to these Conditions and/or the Contract (including, without limitation, any special terms and conditions agreed between us and you) will be binding unless (and until) agreed by us and you in writing.
2.3 All work which we do for you is on a non-exclusive basis – you acknowledge that we will be working on other projects for other clients at the same time.
3.1 The issue of a Proposal to you is deemed to be an invitation to you to make an offer to us to engage us to carry out the Project pursuant to (i) the relevant Proposal and (ii) these Conditions. No offer or counter-offer by you, to engage us, will be deemed to constitute a binding contract between us and you unless and until the terms of such offer or counter-offer have been expressly accepted by us in writing.
3.2 Any offer made by you to engage us to carry out the Project, which is made after you have been supplied with a copy of these Conditions, will be deemed to be conclusive evidence of your unconditional and irrevocable acceptance of these Conditions.
4.1 The Fees for the Project will be quoted in the Cost Proposal and will (subject only to Condition 4.7 below) be binding on you and us provided that you accept the Cost Proposal, in writing, within three (3) months of the date thereof (and provided we have not previously withdrawn it), during which time you may offer to engage us to carry out all or any of the stages of the Project referred to in the Cost Proposal. Thereafter, we will not be obliged to carry out all or any of
the stages of the Project, whether in return for payment of the Fees quoted in the Cost Proposal or at all.
4.2 The Fees quoted in any Proposal are inclusive of all time costs incurred, or to be incurred, by us, our staff and/or our consultants/ sub-contractors in connection with the Project (including, without limitation, for attendance at meetings in the UK) but are exclusive of VAT.
4.3 Should the Project vary from the final agreed Proposal, we will be entitled to amend any estimate of our Fees, external/third party supplier or sub-contractor costs and/or expenses (and we may, at our discretion, suspend any further work on the Project until such amendment has been accepted by you).
4.4 Where you cancel or postpone any part of (or the whole of) a Project, thus leading to us incurring any third party cancellation charge(s), you hereby agree to pay any cancellation charge(s) in addition to any and all other amounts payable by you to us under the Contract provided that these charges are fair and reasonable and that these fees have been notified to you in advance.
4.5 The Fees and any (and all) other amounts payable by you pursuant to these Conditions and the Contract, are exclusive of VAT (and all other applicable taxes and duties) which will be due from, and payable by, you at the rate prevailing on the date of our VAT invoice in respect thereof.
4.6 You may not withhold payment of any invoice or other amount due to us by reason of any right of set-off or counter-claim which you may have, or allege that you have, or for any other reason whatsoever.
4.7 We may, at our sole discretion, by giving reasonable written notice to you at any time, increase the Fees and or any estimate of external/third party supplier or sub-contractor costs and expenses referred to in the Proposal (or in any revision thereof) to reflect: (a) any variation in the Project which is requested by you (and accepted by us in writing); (b) any work or services provided by us to you at any time, at your request, which are over and above those referred to in the Proposal (or in any revision thereof); or (c) any work or services provided by us to you which are repeated, or re-presented, at your request (excluding any work or services which require to be repeated or re-presented as a result of our error or negligence).
We may, at our discretion, suspend any further work on the Project until any such increase has been accepted and agreed by you. You have the right to terminate the Contract if, after discussion with us, you do not accept any increase in Fees.
4.8 There will be no reduction in the Fees unless otherwise agreed by us.
5.1 Payment of the Fees and any other amounts payable by you to us, plus VAT thereon, will be due in cleared Pound Sterling funds within thirty (30) days of receipt of our invoice. Time for payment of the Fees, and all such other amounts, will be of the essence of the Contract.
5.2 We will be entitled to require payments in advance (of such amount as we may specify, at our sole discretion), on account of the Fees and/or any other costs and expenses, at any time during the Project.
5.3 For new client relationships we are entitled to require payment in advance of one third (33%) of the total Project costs quoted in the Cost Proposal.
5.4 Where you fail to make any payment of any Fees or other amounts due under the Contract, either in whole or in part, on the due date or dates for payment then, without prejudice to any of our other rights and/or remedies, we will be entitled (at our sole discretion) to: (a) cancel the Project and terminate the Contract, or suspend all work on any outstanding stage(s) of the Project pending receipt of payment in full from you; and/or (b) charge you interest on the sum that is overdue (which will be payable on demand by us) at the rate of 2.00% above the base lending rate of The Bank of England accruing and compounded from day to day from the date such sum becomes due to the date of actual payment (whether before or after judgment).
6.1 The Completion Date, and any other dates quoted for completion of any stage or stages of the Project, are approximate/estimated dates only and will not be of the essence in relation to the performance of the Project. We will not be liable to you for any loss or damage that may be suffered or incurred by you due to our failure to complete the Project, or any stage or stages thereof, promptly or at all. The completion of each stage of the Project will be invoiced by us, and paid for by you, in accordance of these Conditions and the invoicing schedule within the final agreed Proposal.
7.1 The copyright in the Cost Proposal and any other Project Proposals created by us (and in all prior versions and subsequent revisions thereof) will remain our sole and exclusive property at all times.
7.2 All Intellectual Property arising during the course of the Project will remain our sole and exclusive property, and in our absolute ownership, until we have received payment in full of any Fees (and all VAT thereon) and until all other amounts owed by you to us in connection with the Project (plus all VAT thereon) have been paid in full.
7.3 Where any designs, photography, imagery or specifications have been supplied to us by you, then you warrant that the use of those designs or specifications by us, for the purposes of the Project, will not infringe the rights of any third party. You irrevocably agree to indemnify us in full and keep us fully indemnified from and against any loss, damage, cost or other liability arising in respect of any such infringement.
7.4 We will not act in any way, which we know constitutes an infringement of the Intellectual Property Rights of any third party. However, the services comprised within the Project will not oblige us to make any investigation in respect of the (actual or potential) infringement of any such Intellectual Property Rights, unless expressly agreed in writing between us, and any such investigation that is necessary will be subject to an additional fee. In addition, you irrevocably agree to indemnify us in full, and keep us fully indemnified from and against any loss, damage, cost or other liability arising in respect of any such infringement.
7.5 Furthermore, it will be your sole responsibility, unless expressly agreed in writing between us, to take whatever steps you may consider to be necessary in order to protect your Intellectual Property Rights (if any) to or in any work prepared, created or designed by us, or any of our agents or sub-contractors, during the course of the Project. In the event we agree to undertake such steps on your behalf, this will be subject to an additional fee.
7.6 Our Fees for the Project are agreed on the understanding that no part of the work provided to you (nor any other part of the Project) will be used by you (or any other party) except for the purpose(s) specified in the final agreed Proposal, unless expressly agreed by us in writing and unless you have paid us such additional fee as we may agree between us at the relevant time.
In particular, but without limitation, you should not pass any of our work, or any other Project deliverables, to any third party for commercial use by that third party, or alter any aspect of the final Project works, without our prior written agreement.
7.7 Any work submitted to you by us, which is not incorporated in the final concept accepted by you will remain our sole and exclusive property (along with all related Intellectual Property Rights), regardless of whether or not it is in your possession (or under your control).
7.8 If the Project is cancelled by you in full, you will not be entitled to any of the Intellectual Property Rights arising in connection with the Project, nor to use (or otherwise exploit) any of the ideas, materials or other information made known (or provided) to you by us during the course of the Project.
8 LIMITATION OF LIABILITY – YOUR ATTENTION IS SPECIFICALLY DRAWN TO THIS CONDITION
8.1 The Proposal, and all subsequent proposals, reports, surveys, forecasts, conclusions, letters or plans produced by us in connection with the Project are produced in good faith, and on the basis of the information supplied to us by you (or by third parties on your behalf). Our ability to carry out the Project in accordance with the Proposal and the Contract depends on the effective co-operation of your officers, employees, agents and staff and the accuracy of the material and other information supplied by you to us in connection with the Project. We will be under no obligation or liability to you as a result of any erroneous information or lack of co-operation or as a result of any act or omission of yours or of any of your agents, sub-contractors, consultants or employees.
8.2 Subject to Condition 8.1, we warrant that the work and services provided by us will correspond in all material respects with the description/specification contained in the Proposal and will be carried out, with all reasonable care and with all due speed, by properly qualified staff in accordance with reasonable standards of current and established design practice.
8.3 All other warranties, conditions or terms relating to the work and/or services provided by us (and/or by any external/third party suppliers or sub-contractors appointed by us), whether implied by statute, custom, practice or common law, are hereby excluded to the fullest extent permitted by the law.
8.4 Any claim by you which is based on any defect in the quality of our work and/or service(s) or the failure of such work and/or service(s) to correspond in all material respects with the specification or description in the final agreed Proposal must be notified to us in writing within five (5) working days from the date of supply of the relevant work and/or service(s) by us. If you do not notify us accordingly, we will have no liability to you for any such defect or failure and you will be bound to pay the Fees as if the relevant work and/or service(s) had been delivered in accordance with the final agreed Proposal.
8.5 Where any valid claim is notified to us in accordance with these Conditions, we will be entitled, at our sole discretion: (a) to replace or revise the relevant work or services (or the relevant part thereof) in question, or otherwise to correct the relevant error, at no further cost to you; or (b) to refund to you the relevant Fees (or a proportionate part thereof); but, in any event, we will have no further liability to you and, in any event, under no circumstances will our liability to you (under or in connection with this Contract or in tort, misrepresentation, restitution or otherwise) exceed the amount of the Fees paid by you to us in relation to the Project.
8.6 We will not be liable to you by reason of any representation or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect or consequential loss or damage (including loss of business and/or profits and/or depletion of goodwill and/or anticipated savings), costs, expenses or other claims for consequential loss or pure economic loss (whether caused by our negligence or that of our employees, sub-contractors, agents or otherwise) which arise out of, or in connection with, the Project or which arise from any breach, default or failure, whether direct or indirect, on our part under the terms of the Contract.
8.7 The risk of damage to, or the loss of, any Project works passes to you on despatch but title remains vested in us (notwithstanding despatch/delivery of the same) until all Fees and other amounts due to us under the Contract have been paid in full in cleared funds. Storage of any Project works is at your risk.
9 FORCE MAJEURE
9.1 We will not be liable to you for any delay or default in carrying out any work and/or services for you that arises due to something that is beyond our reasonable control, including (without limitation) any Act of God, war, riot, civil commotion, strike, lock-out, industrial action, fire, explosion, flood, tempest, sickness or non-availability of materials, staff or subcontractors, burglary, malicious damage, weather conditions, transport failures, traffic congestion or any acts, restrictions, regulations, bye-laws, prohibitions or other measures of any kind imposed by any governmental, parliamentary or local authority.
10 TERMINATION BY YOU
10.1 If you terminate the Project on the completion of a stage, then you will incur our Fees and expenses (and the VAT thereon) up to the end of that stage. However, if you cancel a Project during a stage, then you agree to pay the agreed Fees for that stage in full and all expenses incurred up to the date of cancellation including (without limitation) any expenses relating to work which may have been commenced, but not yet presented to you, as at the date of cancellation. Any cancellation of a Project must be effected in writing.
10.2 You may, in your absolute discretion and without prejudice to any other rights (including, without limitation, any and all accrued rights) or remedies which you may have terminate the Contract without any liability to you if:
(a) we commit any material breach of these Conditions or the Contract; or (b) any distress or execution (or any equivalent legal process) is levied on any of our assets in any jurisdiction; or (c) we offer to make any composition or analogous arrangement with our creditors (or any substantial number of them) or we commit any act of bankruptcy or (as the case may be) insolvency; or
(d) any petition in bankruptcy is presented or any bankruptcy order is made, in relation to us by any party; or (e) we are unable to pay our debts as they fall due or we have no reasonable prospect of doing so (or we suspend, or threaten to suspend, the payment of our debts or our business as a whole); or (f) being a company, any resolution, order or petition for winding up (other than for the purpose of a solvent amalgamation or reconstruction) is passed or made by us or presented against us by any third party; or (g) a receiver, administrator, administrative receiver or equivalent officer or manager is appointed over the whole, or any part, of our business or assets; or (h) we suffer any analogous event or proceedings under any foreign law or in any other jurisdiction.
10.3 On the termination of the Contract (for whatever reason),
we will immediately return to you any and all documents, information, samples and other materials which relate to the Project or the Project works.
11 TERMINATION BY US
11.1 All Fees and other sums outstanding in respect of the Project will become payable by you to us immediately (without further notice and without prejudice to any right to claim for interest under this Contract), and we may, in our absolute discretion and without prejudice to any other rights (including, without limitation, any and all accrued rights) or remedies which we may have, suspend all future work and services and/or terminate the Contract without any liability
to you if: (a) you fail to make payment of the Fees (or any part thereof) in accordance with these Conditions; or (b) you commit any other material breach of these Conditions or the Contract; or (c) any distress or execution (or any equivalent legal process) is levied on any of your assets in any jurisdiction; or
(d) you offer to make any composition or analogous arrangement with your creditors (or any substantial number of them) or you commit any act of bankruptcy or (as the case may be) insolvency; or (e) any petition in bankruptcy is presented or any bankruptcy order is made, in relation to you by any party; or (f) you are unable to pay your debts as they fall due or you have no reasonable prospect of doing so (or you suspend, or threaten to suspend, the payment of your debts or your business as a whole); or (g) being a company, any resolution, order or petition for winding up (other than for the purpose of a solvent amalgamation or reconstruction) is passed or made by you or presented against you by any third party; or (h) a receiver, administrator, administrative receiver or equivalent officer or manager is appointed over the whole, or any part, of your business or assets; or (i) you suffer any analogous event or proceedings under any foreign law or in any other jurisdiction.
11.2 In any event, Conditions 7 and 8 will survive any termination of the Contract and will continue in full force and effect (notwithstanding such termination).
11.3 On the termination of the Contract (for whatever reason), you will immediately return to us any and all documents, information, samples and other materials which relate to the Project or the Project works and which have not been paid for in full or which otherwise remain our property.
12.1 It is your responsibility to check, and approve in writing, the content of any work submitted to you by us including (without limitation) all text, photography, illustrations, technical drawings, artwork, colour proofs, cromalins, running sheets and any other work submitted by us to you, prior to the commencement of each stage of the Project. We will not be liable for any errors, which are not corrected by you.
13.1 We will treat and maintain as confidential any and all information relating to your business which is acquired by us during the course of the Project and we will not disclose the same to any person except as may be necessary in connection with the performance of the Project or to comply with any court order or other legal or regulatory requirement, provided that this obligation will not apply to any information which is (or becomes) generally available to the public.
14.1 You will not, at any time during the Project or for a period of twelve (12) months thereafter, without our prior written consent, directly or indirectly retain, engage or employ, or attempt or seek to retain, engage or employ or otherwise solicit the services of, any person whose services are provided to you (in whatever capacity) in carrying out the Project.
15.1 The headings in these Conditions are included for ease of reference only and will not affect their construction or interpretation.
15.2 If any dispute or difference arises out of or in connection with the Contract, we and you agree to seek to resolve such dispute or difference amicably by using an alternative dispute resolution (ADR) procedure acceptable to both parties before pursuing any other legal remedy that is available. However, if the dispute or difference is not resolved within ninety (90) days after it has arisen, then we and you may pursue other legal remedies.
15.3 Any notice served under the provisions of this Contract must be in writing (which includes fax but not e-mail) and will only be considered to have been duly served on you if handed to you personally or left at, or posted to, your last known address. Any such notice served by you under the provisions of this Contract must also be in writing and should be served on Oxoeve Creative Limited if handed by you to a Director of the company or left at, or posted and delivered to, Oxoeve Creative Limited’s registered office.
15.4 We hereby reserve the right to publicise the work we have done for you and to receive examples of the final products involving our designs.
15.5 We may assign, license or sub-contract all or any part of our rights and obligations under the Contract to third-parties without your consent provided we shall remain liable to you at all times for all acts and omissions of any such third parties. You may not assign, license or sub-contract (or otherwise dispose of) any part of your rights or obligations under the Contract, or purport to do so, without our prior written consent. A person who is not a party to the Contract will have no rights under or in connection with it.
15.6 No waiver or forbearance by us (whether expressed or implied) in enforcing any of our rights or remedies under this Contract will prejudice our right to do so at any time in the future.
15.7 You acknowledge and agree that personal data relating to you will be processed by us (or on our behalf) in connection with the performance of our obligations under the Contract.
15.8 If any provision of the Contract (or any part of any such provision) is held to be illegal, invalid or unenforceable, you and we will negotiate in good faith to amend such provision (or part-provision) so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves our respective original commercial intentions.
15.9 The Contract constitutes the whole agreement between us and you in relation to the Project and supersedes all previous agreements between us and you in relation to the Project. You and we acknowledge that, in entering into the Contract, neither of us has relied on, and (as such) neither of us has any right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) save as provided for in the Contract.
15.10 Nothing in the Contract is intended to, nor will be deemed to, constitute a partnership or joint venture of any kind between us and you, nor constitute either us or you as the agent of the other for any purpose. Neither we nor you will have any authority to act as agent for, or to bind, the other in any way.
15.11 If the Proposal, these Conditions or any other related document is signed by, or an invoice is submitted to, any person or firm who is held out as your agent, you will nevertheless be treated for all purposes as the contracting party.
15.12 The Contract is subject to the laws of England and the parties are subject to the jurisdiction of the English Courts.