In these Terms: "Agreement" means in relation to Services of a marketing communications nature, the document setting out further terms relating to the Contract; "Approval" means the document completed and signed by the Client indicating its acceptance and approval of any Output Materials produced by Carswell Gould pursuant to the Contract; "Carswell Gould " means Carswell Gould trading as Carswell Gould with its principal place of business situated at 16 Brunswick Place, Southampton SO15 2AQ "Charges" means Carswell Gould's fees for the Services as set out in the Specification or, in the case of Services of a public relations nature, in the agreement and work order; "Client" means the person named in the Specification or in the Agreement for whom Carswell Gould has agreed to provide the Services in accordance with these Terms; "Contract" means the contract for the provision of the Services which shall be formed by the Agreement or the Specification and these Terms; "Document" includes, in addition to a document in writing, a map, plan, design, drawing, picture or other image, or any other record of any information in any form; "Expenses" means the cost of accommodation, subsistence, traveling and any other ancillary expenses reasonably incurred by Carswell Gould in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by Carswell Gouldfor the supply of the Services; "Input Materials" means any Documents or other materials, and any data or other information provided by the Client relating to the Services; "Output Materials" means any Documents or other deliverables, whether in draft or final form, provided by Carswell Gould relating to the Services; "Specification" means in relation to all types of Services provided by Carswell Gould SAVE FOR Services of a public relations nature, the document setting out further terms relating to the Contract; and "Services" means the services to be provided by Carswell Gould for the Client and referred to in the Specification or in the Agreement.
Application of these Terms
These Terms (together with the terms set out in either the Specification or the Agreement) constitute the entire agreement between the parties and they supersede any previous agreement or understanding. These Terms, together with the Specification or the Agreement, shall govern the Contract to the exclusion of any other inconsistent terms which the Client attempts or purports to incorporate into the Contract including the Client's standard terms and conditions (if any).
All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
No variation to these Terms shall be binding unless agreed in writing between the parties.
Carswell Gould's employees or agents are not authorised to make any representations concerning the Services unless confirmed by Carswell Gould in writing. In entering into the Contract, the Client acknowledges that it does not rely on any such representations, which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
Supply of the Services
Carswell Gould shall provide the Services to the Client in accordance with the Specification or the Agreement and subject to these Terms.
The Client shall at its own expense supply Carswell Gould with all necessary Input Materials, within sufficient time to enable Carswell Gould to provide the Services in accordance with the Contract. The Client shall ensure the accuracy of all Input Materials.
The Client shall at its own expense retain duplicate copies of all Input Materials and insure the same against its accidental loss or damage. Carswell Gould shall have no liability for any such loss or damage, howsoever caused.
Upon receipt of any draft Output Materials from Carswell Gould, the Client shall be responsible for inspecting the draft Output Materials and ascertaining their conformity with the Specification or the Agreement. The Client has 7 days from the date of delivery of the draft Output Materials to either:
complete, execute and deliver to Carswell Gould the Approval signifying its acceptance of the draft Output Materials; or
notify CarswellGould of its failure to produce the draft Output Materials in accordance with the Specification or the Agreement.
If the Client fails to act in accordance with paragraph 3.4 above, the Client shall not be entitled to reject the Output Materials and Carswell Gould shall have no liability for such breach or failure, and the Client shall be bound to pay the Charges as if the Output Materials had been delivered in accordance with the Contract.
Where Carswell Gould receives notification from the Client pursuant to paragraph 3.4.2 above, it shall take such steps as are necessary to remedy such breach or failure.
The Client shall pay Carswell Gould's Charges and any Expenses for the provision of the Services in accordance with this paragraph 4.
All Charges quoted to the Client for the provision of the Services are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
Carswell Gould shall invoice the Client following completion of the Services or delivery to the Client of the Output Materials.
The Client shall pay each invoice submitted by Carswell Gould, in full and in cleared funds, within 15 days of the date of the invoice.
If payment is not made by the due date, Carswell Gould shall be entitled to charge interest on the outstanding amount at the rate of 4% per cent above the base lending rate from time to time of Barclays Bank plc from the due date until the outstanding amount is paid in full.
Rights in Input Materials and Output Materials
The property and any copyright or other intellectual property rights in:
any Input Materials shall belong to the Client;
any Output Materials shall, unless otherwise agreed in writing between the Client and Carswell Gould, belong to Carswell Gould, but the Client shall be entitled to use the Output Materials for the purposes of utilising the Services by way of a non-exclusive licence, subject to payment in full of all sums payable under the Contract. Please note this means that if you buy design from CG you will not receive or own the design working files. You will be supplied with the finished artwork and with permission to use if for the estimated and agreed purpose. If you wish to own the working files we are happy to supply them for an additional sum. Please specify this requirement upfront when you request a cost.
Any Input Materials or other information provided by the Client which is so designated by the Client; and any Output Materials shall be kept confidential by Carswell Gould, and any information provided by Carswell Gould which is so designated by Carswell Gould shall be kept confidential by the Client; but the foregoing shall not apply to any Documents or other materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
The Client warrants that any Input Materials and their use by Carswell Gould for the purpose of providing the Services will not infringe the copyright or other rights of any third party, and the Client shall indemnify Carswell Gould against any loss, damages, costs, expenses or other claims arising from any such infringement.
Subject to paragraph 5.3, Carswell Gould warrants that any Output Materials and their use by the Client for the purposes of utilising the Services will not infringe the copyright or other rights of any third party, and Carswell Gould shall indemnify the Client against any loss, damages, costs , expenses or other claims arising from any such infringement.
Warranties and Liability
Carswell Gould warrants to the Client that the Services will be provided using all reasonable care, skill and diligence and, as far as reasonably possible, in accordance with best practice prevailing. Where Carswell Gould supplies in connection with the provision of the Services any goods (including Output Materials ) supplied by a third party, Carswell Gould does not give any warranty, guarantee or other term as their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to it.
Carswell Gould shall have no liability to the Client for any loss, damage, costs, expenses, or other claims for compensation arising from any Input Materials or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
Except in respect of death or personal injury caused by Carswell Gould's negligence, or as expressly provided by these Terms, Carswell Gould shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Carswell Gould, its servants or agents or otherwise) which arise out of or in connection with the provision of the Services (including any delay in providing or failure to provide the Services) or their use by the Client, and the entire liability of Carswell Gould under or in connection with the Contract shall not exceed the total price paid for the provision of the Services, except as expressly provided in these Terms.
Carswell Gould shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform, any of Carswell Gould's obligations in relation the Services, if the delay or failure was due to any cause beyond Carswell Gould's reasonable control.
Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these Terms and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, becomes bankrupt, has a receiver appointed, makes a composition or voluntary arrangement with its creditors or enters administration, or a moratorium comes into force in respect of the other (within the meaning of the Insolvency Act 1986).
The Client shall not at any time during the duration of the Contract or for 6 months after the termination of the Contract, solicit or entice away from Carswell Gould or employ or attempt to employ any person who is an employee of Carswell Gould. If the Client does entice away an immediate fee of £45k will be charged followed by legal action.
A notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
This Contract shall be governed by and be interpreted in accordance with English Law and the parties hereby submit to the exclusive jurisdiction of the English courts.