We/us/our means Checkland Kindleysides Limited (company number 2012831)

You/your means the person, firm or company we provide services to.

In these Contract Terms the singular includes the plural and vice versa unless the context otherwise requires.

1.1.   Co-operation

1.1.1.  You agree to help us by making available to us all relevant information and by co-operating with us. In particular you agree to give a clear brief to us and ensure that all the facts given about any particular project (“Project”) in respect of which our services are required are complete and accurate and in no way misleading.

1.2.  Basis of our Work

1.2.1.  Our services (which for the purposes of these Contract Terms includes the provision of any goods) (“Services”) will be supplied to you in accordance with any written estimate which we have supplied to you which is accepted by you, or any written order from you which is accepted by us, subject in either case to these Contract Terms, which, in the absence of any specific written contract (“Specific Contract”) between us and you which is signed by your authorised representative and a director of ours and which expressly excludes or modifies these Contract Terms, will govern any contract between us and you for the supply of Services (“Contract”) to the exclusion of any other terms and conditions subject to which any estimate is accepted or purported to be accepted, or any such order is made or purported to be made, by you, and under no circumstances are any other conditions to be construed as a counter offer.

1.2.2.  No variation of these Contract Terms shall be binding unless agreed in writing between your authorised representative and one of our directors.

1.2.3.  Our employees or agents are not authorised to make any representations concerning Services unless confirmed by one of our directors in writing. In entering into any Contract you acknowledge that you do not rely on, and waive any claim for breach of, any such representations which are not so confirmed.

1.2.4.  Any typographical, clerical or other error or omission in any sales literature, estimate, quotation, price list, acceptance of offer, invoice or other document or information issued by us shall be subject to correction without any liability on our part.

1.2.5.  Our written estimate will remain open for acceptance for a period of 30 days from the date of the estimate.

1.2.6.  We shall be entitled to sub-contract all or any part of any Services.

1.2.7.  If there is a Specific Contract between us and you and there is any conflict between that Specific Contract and these Contract Terms the terms of the Specific Contract shall prevail.

1.2.8.  Time shall not be of the essence in relation to any dates specified by us.

1.2.9.  You acknowledge that by this Clause 1.2.9 (if not otherwise) we have drawn your attention to the Construction (Design and Management) Regulations 2007 (as re-enacted or modified from time to time) and any related Approved Code of Practice from time to time issued by the Health & Safety Commission (especially the first three sections of it) and you are aware of, and, if such Regulations apply to any Project or any Contract, shall comply with your duties under those Regulations. If we are to be the Principal Contractor and/or CDM Co-ordinator under those Regulations you will promptly confirm that appointment in writing.

2.1.  After obtaining your general approval to our design concept we will submit to you for specific approval detailed drawings, copy, layouts and artwork, should this form part of our Services.

2.2.   Authority

Your approval of drawings, copy, layouts and artwork will be our authority to purchase production materials, prepare proofs and to engage other parties (including without limitation, photographers, models, shopfitters, electrical contractors) and to enter into contracts for other facilities necessary to perform the Services. We shall not be liable for any errors in such drawings, copy, layout and artwork which have been approved by you or which have been submitted to you and in relation to which we have not received notice of the errors from you within 7 days of submission, except to the extent that such errors could not reasonably have been identified by you at the time of approval or submission (as appropriate).

2.3.   Amendments

You may on reasonable notice request us to change, or cancel any or all design briefs, plans, schedules or work-in-progress and we shall take all reasonable steps to comply as soon as it is reasonably practicable to do so, provided that we can do so within our contractual obligations to suppliers and other third parties. In the event of any such change or cancellation you will reimburse us for any resulting charges or expenses incurred by us, and for charges or expenses to which we are committed and will pay us for any part of any Services which we have carried out for you up to that point at the Contract price for those Services, or if they are not separately priced, at such price as we consider reasonable. This is in addition to your obligations at Clause 10.3.

2.4.   Access

You shall ensure that we have access to your premises at whatever times we deem appropriate to enable us to perform the Services.

3.1.   Contract Price

You will pay us any Contract price in accordance with the estimate accepted by you or the order accepted by us together with any increase in price payable in accordance with Clause 3.4 and any additional charges set out in these Contract Terms or agreed between you and us. Where the estimate shows any Contract price is payable in stages you will be invoiced at each stage.

3.2.   Incidental Expenditure

We will bear the cost of UK post and UK telephone expenses but we reserve the right to charge you for expenses of this nature (including without limitation, all courier and parcel delivery charges whether within or outside the UK) and all travel, subsistence and accommodation expenses.

3.3.   Value Added Tax.

We shall include in our invoices, where appropriate, VAT as an additional charge. Any Contract price is exclusive of VAT.

3.4.   Increase in Price

We may increase any Contract price of any Services at any time prior to delivery to reflect any increase in the cost to us of supplying such Services which is due to any factor beyond our control (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs), any change in delivery dates, quantities or specifications for such Services which are requested by you, or any delay caused by any instructions from you or failure by you to give us adequate information or instructions. Where our estimate is based upon an agreed timetable we may increase the cost of such Services if we have to change it to meet your requirements.

3.5.  Transport, Packaging and Insurance

Unless otherwise agreed any Contract price is an ex-works price, and where we agree to deliver our work to a place other than our premises, you will be liable to pay our charges for transport, packaging and insurance.

4.1.  Our invoices are payable in pounds sterling within 30 days of the date of the invoice (without any deduction or set off).

4.2.  If you fail to make payment of any sum on the due date under any Contract then, without prejudice to any other right that is available to us, we shall be entitled to:

4.2.1.  cancel any Contract or suspend any further Services to be supplied on your behalf and/or;

4.2.2.  charge you interest (both before and after judgment) on the amount outstanding at a rate of 6% per annum above the prevailing HSBC Plc base rate, until payment in full is made.

4.3.  Time for payment shall be of the essence.

5.1.  When we refer to ‘Intellectual Property rights’ we mean patents, registered and unregistered trade marks and service marks, registered designs, utility models, design rights, copyright or any application to register any of the same and any other rights in the nature of intellectual property in the UK or elsewhere relating to any Services whether these rights are in existence at the time of the applicable Contract or created later.

5.2  Subject to any Specific Contract between us and you which expressly excludes or modifies this Clause, in relation to ownership and/or use of the Intellectual Property rights:

5.2.1.  we will retain ownership in all Intellectual Property rights other than any Intellectual Property rights which we do not own and which are licensed to us by third parties to enable us to provide any Services. Where we use stock materials (for example, photographs or audio works) from commercial or other libraries, we shall where appropriate obtain a licence for you to use those materials;

5.2.2.  to the extent that we are entitled to do so (but not otherwise) we grant you a royalty-free, worldwide and non-exclusive licence to use the Intellectual Property rights (but not otherwise) for the purposes of the Project in respect of which the applicable Services were supplied This licence does not give you the right to grant sub-licences of the Intellectual Property rights without our prior written consent. The grant of this licence is conditional upon you paying all monies due to us under the applicable Contract and such licence shall not take effect until all such monies have been paid to us in full.

5.3  You shall indemnify and keep us fully and effectively indemnified from and against all claims, liabilities, loss, damage, costs and expenses (including legal fees) suffered or incurred by us in connection with any use by you of the Intellectual Property rights which is not in accordance with the licence granted to you in Clause 5.2.2.

5.4.  If an infringement of the Intellectual Property rights occurs, then the following provisions apply:

5.4.1.  we shall have the sole right to take action against third parties for infringement of the Intellectual Property rights licensed to you under Clause 5.2.2 and if required by us, you shall co-operate fully with us in any such action at our cost;

5.4.2.  if we fail to take any such action against third parties or to require you to do so you may serve notice on us and upon the expiry of 30 days after the service of such notice you shall be entitled to prosecute such action yourself and at your own expense provided that we have not served notice within the 30 day period of our own intention to take action;

5.4.3.  you shall in no circumstances settle any claim or action against third parties without our prior written consent;

5.4.4.  all damages recovered from third parties shall be our exclusive property provided that you shall be entitled to set off any expenses which you are able to claim from us under this Clause 5.4 against damages recovered by you.

5.5.  You warrant that our use of any materials or information that you supply to us does not and will not infringe the intellectual property rights of whatever nature of any third party and that you are authorised to allow us to use such rights in the performance of the applicable Contract. You agree to indemnify us against any loss, damages, costs, expenses or other claims which we may suffer or incur arising from any such infringement.

5.6.  We shall return to you upon your request and at your cost any materials which you have supplied to us which we no longer need in order for us to perform any Services for you.

6.  CONFIDENTIAL INFORMATION

6.1.  During our performance of a Contract, you may provide us with information that you regard as confidential. You may regard the detail of the Services we are supplying to you as confidential. Subject to Clauses 6.2 and 6.3 we agree to keep this type of information confidential and not to disclose it without your consent. We may disclose it to any third party we commission or sub-contract as long as we do so in circumstances of confidentiality. We may also disclose your name, your relationship with us and the nature of the work we have undertaken for you in any of our own marketing.

6.2.  We shall not be under any obligation of confidence about matters that are in the public domain or of which we were already aware. We shall not be in breach of our duty to you if we have to disclose information which you regard as confidential to an official body or Court.

6.3.  During our performance of a Contract, we shall be providing you with ideas, concepts and other information. You agree to keep these confidential and only to use them for the purpose of considering your instructions to us. In the event that we agree with you not to use certain concepts, ideas or other information then you shall return to us or (at our request) destroy all materials relating to those (with any copies in whatever form stored) and not make any further use of them whatsoever.

6.4.  The provisions of this Clause 6 shall survive the termination of a Contract.

7.1.  We may (without your consent or payment to you) make unlimited use of all material relating to any Services including but without limitation drawings, artwork, ideas, know how and intellectual property rights to promote, market and advertise our services to any third party.

8.1.   Legal Liability

8.1.1.  Where insurance is available at commercially reasonable rates we will carry professional indemnity insurance up to £1,000,000 and we will insure in such amount as we consider appropriate any of our work which forms part of any Services until delivery.

8.2.   Client's Risk

8.2.1.  You will carry the risk of loss or damage to your property.

8.2.2.  You will be responsible for and insure against loss or damage to the full value any drawings, specifications, films and other items belonging to you during the time that they are in the possession of us or of a third party or in transit to or from our premises or those of third parties.

8.2.3.  Risk of damage to or loss of any of our work which forms part of any Services will pass to you on delivery which is for the purpose of a Contract:

(i)  in the case where we have agreed to deliver our work to your premises, at the time of delivery or, if you wrongfully fail to take delivery, at the time when we have tendered delivery of our work; or

(ii)  where you are to collect the work from our premises, the time at which we make the work available for collection.

9.1.   Limitation of our Liability

Except in respect of our fraudulent misrepresentation or death or personal injury caused by our negligence:

9.1.1.  We shall 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 any Contract, for any loss of profit, consequential loss, depletion of goodwill, loss of business or costs, expenses (and whether caused by the negligence or default of our employees, subcontractors, agents or otherwise) which arise out of or in connection with the supply to you of Services (whether by us or by any subcontractor or agent) or of their use by you, except as expressly provided by these Contract Terms.

9.1.2.  No action or proceedings in relation to or arising out of our performance of any Services or for any breach of any Contract shall be commenced against us after the expiry of 3 years from completion of such Services or earlier termination of such Contract.

9.1.3.  In circumstances where any Project requires that, in addition to the Services to be supplied under the applicable Contract, other services are provided by consultants, specialists or contractors, our liability for any costs, claims, loss, expense or damage, whether direct or indirect, arising out of or in connection with such Contract for such Project shall be limited to such proportion of any such sums as it would be just and equitable for us to pay having regard to the extent of our responsibility for the same and on the basis that, all such other consultants, specialists, and contractors should be deemed to have provided to you contractual undertakings in respect of their services no less onerous than such Contract and shall be deemed to have paid you such proportions as would be just and equitable having regard to the extent of their responsibility for such costs, claims, loss, expense or damage, and;

9.1.4.  our liability, if any, to you for any loss or damage arising out of any action or proceedings referred to in Clause 9.1 shall not exceed the lower of:
9.1.4.1.  the Contract price for the Contract in question;
9.1.4.2.  the insurance cover (if any) which we are obliged to carry pursuant to Clause 8.1, and;
9.1.4.3.  if applicable the limit contained in Clause 9.1.3.

9.2.   Indemnity to Us

Except in respect of any loss or damage caused by our negligence you will indemnify us against any loss, costs, claims, expenses or fees we may incur relating to any work which forms part of any Services and approved by you or which has been submitted to you and in relation to which we have not received a notice of errors from you within 7 days of submission.

9.3.   Warranty

9.3.1.  We warrant to you that Services will be carried out with reasonable care and skill. All other conditions, warranties or terms implied by statute or common law are excluded to the fullest extent permitted by law. Where you have a valid claim against us in respect of any Services which is based on any defects in the quality or condition of such Services we shall be entitled to replace our work, or the part in question, free of charge or, at our sole discretion, refund to you the price of such Services (or a proportionate part of the Contract price in respect of such Services) but we shall have no further liability to you.

9.3.2.  Any claim by you which is based on any defect in the quality or condition of any Services shall (whether or not delivery is refused by you) be notified to us in writing within 10 days of delivery or (where the defect or failure was not apparent on reasonable inspection) within 7 days after discovery of the defect or failure. If delivery is not refused, and you do not notify us accordingly, you will not be entitled to reject the Services and we shall have no liability for such defect or failure, and you will be bound to pay the Contract price as if such Services had been delivered in accordance with the terms of the applicable Contract.

9.4.   Adjudication

9.4.1.  Without prejudice to our or your rights to bring proceedings in the courts any dispute or difference between us and you arising out of a Contract may first be referred by either of us to adjudication. The adjudicator shall be a person to be agreed between us and you, or if we both cannot agree, on the application of either of us and you, a person nominated as adjudicator by the Chairman of the Technology and Construction Solicitors Association (“TeCSA”)..

9.4.2.  Adjudication shall proceed and be conducted in accordance with the adjudication rules published by TeCSA.

9.4.3.  Both you and we will be bound to comply forthwith with the decision of any adjudicator until such time (if any) as it is superseded by a decision of the courts in relation to the matter in question.

10.1.  We may, without prejudice to any of our other rights, suspend the supply of the any Services we are supplying to you and/or by notice in writing to you terminate any Contract with you for the supply of such Services if:

10.1.1.  an order is made or a resolution is passed for your winding-up, or;

10.1.2.  a receiver, administrator or administrative receiver is appointed over any of your assets or undertaking, or;

10.1.3.  (being an individual) an order is made for your bankruptcy, or;

10.1.4.  you are unable to pay your debts within the meaning of Section 123 of the Insolvency Act 1986 (or any statutory re-enactment or modification of that Act) or you make a composition with your creditors; or

10.1.5.  you suffer any analogous proceedings to those at 10.1.1 to 10.1.4 in any other jurisdiction or under any foreign law, or;

10.1.6.  you fail to pay any sum due on the due date, or;

10.1.7.  you in any other manner whatsoever materially breach any provision of such Contract and fail to remedy such breach within 7 days of being notified of it by us.

10.2.  You may, by notice in writing to us, terminate any Contract if any of the circumstances in any of Clauses 10.1.1 to 10.1.6 apply to us. You may, by notice in writing to us, terminate a Contract if the circumstances in Clause 10.1.7 apply to us in respect of such Contract

10.3.  If you terminate a Contract (other than in accordance with Clause 10.2) prior to the Services being completed, or if we terminate a Contract in accordance with Clause 10.1, you will be liable to pay to us:

10.3.1.   the amount of any outstanding invoices issued in respect of that Contract, and;

10.3.2.   all costs and expenses incurred by us in respect of that Contract up to the date of termination, and;

10.3.3.   full compensation for loss of profit on Services supplied in respect of that Contract but not yet billed and Services not yet undertaken in respect of that Contract, and;

10.3.4.   our costs incurred in respect of sub-contractors and suppliers, including fees for work carried out and any compensation for early termination.

10.4.  Force Majeure

10.4.1.   For the purposes of this Clause 10.4 ‘Force Majeure’ shall mean any circumstances or events beyond a party’s reasonable control including but not limited to, act of god, war, act of terrorism, riot, trade embargo, strike, lock-out, trade dispute, breakdown of plant or machinery, difficulty or increased expense in finding workmen, materials or transport, accident, fire, flood, storm, any order of local or national government or international authority or any other circumstances affecting the performance of the obligations set out in any Contract.

10.4.2.  If either party is affected by Force Majeure it shall immediately notify the other party of the nature and extent of it.

10.4.3.   Neither party shall be deemed to be in breach of a Contract or otherwise liable to the other by reason of any delay in the performance or non-performance of any of its obligations under such Contract to the extent that such delay or non-performance is due to Force Majeure of which it has notified the other party and the time for performance of that obligation shall be extended accordingly.

11.1.  In order to satisfy the requirements of the Advertising Standards Authority, the British Code of Advertising Practice, the British Code of Sales Promotion Practice and other codes of advertising standards laid down voluntarily within the advertising industry (‘the Codes’) or any statutory requirements and in the interests of yourselves, ourselves and the public you agree to supply us immediately with objective factual evidence, if so required, in support of any product claims you wish us to make.

11.2.  You agree to inform us without delay if you consider that any claim or trade description in any materials submitted to you by us for approval is false or misleading in relation to your product or service having regard to, amongst other things, the Codes.

11.3.  We shall not be liable for any breaches of the Codes or other relevant statutes where you have approved any advertising material prepared by us or which has been submitted to you and in relation to which we have not received a notice of errors from you within 7 days of submission.

11.4.  You shall indemnify and keep us fully and effectively indemnified from and against all claims, liabilities, loss, damage, costs and expenses (including legal fees) suffered or incurred by us in connection with your breach of this Clause 11.

12.1.  Not withstanding the delivery and the passing of risk in work which forms part of any Services, or any other provision of these Contract Terms, ownership in the work and materials that we provide to you in respect of such Services shall not pass to you until we have received in cash or cleared funds payment in full of the Contract price and all other work agreed to be undertaken by us for you for which payment is then due.

12.2.  Until such time as the ownership in any work and materials which forms part of any Services that we provide passes to you;

12.2.1.  you will hold such work and materials as our fiduciary agent and bailee, and will keep it separate from your own property and that of third parties, properly stored, protected and insured and identified as our property, and;

12.2.2.  we shall be entitled at any time to require you to deliver such work and materials to us and if you fail to do so, forthwith to enter upon any of your premises or that of any third party where they are stored, and to re-possess them.