Basis of proposal and project terms
- A successful project relies on both parties and it is important that all necessary information for the timely completion of the scope of work defined in a proposal is accurately supplied to the Consultant by the Client in the format requested.
- Project timings and/or a detailed schedule will be provided by the Consultant where appropriate.
- The Client guarantees the accuracy, completeness and reliability of all documentation and information supplied to the Consultant and indemnifies the Consultant against any claims that may arise as a result of use of this documentation and information. The client understands that inaccurate, illegal or incomplete information may cause time delays and may also result in additional work which will be quoted and charged extra.
- The Client will respond promptly to all stages of work as they are presented and provide accurate feedback and precise and timely decisions. Inaccurate feedback or retrospective decisions may impact on the integrity of the project, the Consultant’s ability to complete the project and result in additional costs and increased timeframes. Delayed decisions may also impact on the integrity of the project, the Consultant’s ability to complete the project and result in additional costs and increased timeframes.
- Any dates defined within a schedule or by any other means shall only be regarded as fixed deadlines where this has been agreed in writing with the Consultant prior to commencement of the supply of the specific services the schedule refers to.
- Extension or compression of timings/schedule will be deemed to be a change to the scope of a proposal and therefore additional fees may be quoted at the Consultant’s discretion.
- The Consultant will not accept any liability for failure to complete the project within projected timeframes if changing events prevent the project being completed accordingly. In this event the Consultant will highlight any concerns as soon as is practical.
- Fees have been calculated based on the Consultant’s best assessment of the scope of the project based on the information supplied by the Client. Changes and/or additional project requirements which manifest through discussions and/or meetings during the duration of the project or become evident as the project progresses due to inaccurate or incomplete information supplied by the Client may be quoted additionally at the Consultant’s discretion.
- Amendments are limited to those defined within the narrative for each stage of work within a proposal and additional work will be quoted and charged extra.
- The parameters of work covered by a proposal is restricted to the items detailed in the narrative for each stage and excludes third party costs other than those specified. The Client is to act as Principal in Contracts with Third Party suppliers where defined within a proposal.
- Accuracy of all materials submitted for onward processing rests with the client and on approval of any works presented by the Consultant for approval, responsibility passes to the client.
Terms and conditions of business
A Contract shall be formed between the Consultant and the Client. A proposal constitutes an offer by the Consultant to supply the Services detailed in a proposal to the Client.
A Contract will be deemed to be in existence once a proposal has been approved in writing (in the form of a letter or e-mail) by the Client. The Contract will cover any subsequent changes to this proposal.
If the Consultant has not received written acceptance of a proposal, the Contract shall be deemed to have come into existence as soon as the Consultant commences supply of the Services on the Client’s behalf following their request to do so.
Any presentations, descriptive matter, website or social media content, or advertising/exhibitions are published for the purpose of giving an approximate idea of the Consultant’s services and shall not form part of the offer or Contract.
A proposal given by the Consultant is valid for a period of 20 business days from the date of issue.
2. Scope of a project
The scope of a project will be as set out in a proposal. The Client acknowledges that they have not relied on any presentation, discussion or statement, made or given by the Consultant that is not set out in the Services and that they do not form part of the Contract and do not have any contractual force.
If the programme of work changes or increases, or there is a compression or extension of timeframes, or changes and/or additional project requirements which manifest through discussions and/or meetings, the Consultant reserves the right to quote and charge extra. Amendments will be limited to those defined within the narrative within a proposal and additional work will be quoted extra.
The Consultant undertakes to carry out the scope of a project as set out in a proposal with reasonable skill and care and in accordance with all applicable laws and regulations. No guarantees are implied or offered in relation to achievement of retailer listings and/or achievement of sales figures or the success of a business venture, project or product.
The role of the Consultant in a project will be consultancy and the Client will act as principal in any contracts with third parties unless detailed to the contrary within the proposal
3. Payment terms
Payment terms will be indicated within a proposal as appropriate.
If the Client fails to make payment within the times specified then, without prejudice to any other right or remedy available, the Consultant shall be entitled to charge the Client interest on the unpaid amount. This interest shall be at a rate of 1 per cent per annum above Barclays Bank Plc base rate, as varied from time-to-time, until full payment is made. In extreme cases of delayed payment, the Consultant reserves the right to put a project on hold until such time as an account is brought up-to-date. And in instances where phased payments have been agreed which have not been made, all outstanding fees will become payable immediately. All payments to be made in Sterling without deduction of exchange commissions or taxes.
The Consultant will recharge all expenses relating to disbursements, travel, subsistence, overnight accommodation at cost. Car mileage will be recharged at 0.45p/mile.
5. Postponement or Cancellation
In the event of a postponement or cancellation of a project which has already been commissioned, then the following terms shall be applied:
The Consultant shall pass on, at cost, any external charges which it has been necessary to pay and expenses incurred. There will normally be no additional charge for executive time, assuming a project is re-booked and takes place within 3 months of the original planned dates. If a project is not re-booked within 3 months it will be deemed to have been cancelled.
In the event of cancellation of a project, the Consultant will charge, in full, all costs incurred up to the point of time of cancellation including external charges and expenses (where incurred) and executive time. Due to project phasing and resource commitment, fees at the time of cancellation may exceed those defined within a proposal for work in progress and the Consultant will provide time summary records to support the fee claimed if applicable. If there is any refund due of fees paid, these will be notified to the Client and paid accordingly.
6. Fulfilment of terms
Where name generation and/or brand creation activity is a component of the project, the Consultant will endeavour to ensure that all names submitted are both available and suitable for registration (as defined within the proposal) at the time of presentation to the Client but will not accept any liability if following application for registration a name or strap line is deemed unsuitable for registration due to a challenge by an existing trademark holder OR due to a conflict with an existing mark OR in circumstances where no trademark checks are carried out (contrary to the Consultants advice) they are subsequently challenged by a third party or deemed unsuitable for any reason OR where a conflicting registration application has been submitted in the interim period between presentation by the Consultant and trademark application by the Client.
The Consultant shall use all reasonable endeavours to achieve the dates and times as detailed within a proposal and subsequent correspondence and the Consultant shall, where practicable, notify the Client if and when it is reasonably apparent that a delay may be incurred.
The Consultant 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 their obligations under the Contract, if the delay or failure was due to any cause beyond the Consultant’s reasonable control or by the failure of the Client to comply with key dates and information supply as defined within a proposal and subsequent correspondence. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Consultant’s reasonable control: i. act of God, explosion, flood, tempest, fire or accident; ii. war or threat of war, sabotage, insurrection, civil disturbance or requisition; iii. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; iv. import or export regulations or embargoes; v. strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Consultant or a third party); vi. difficulties in obtaining raw materials, labour, fuel, parts or machinery; vii. power failure or breakdown in machinery.
Whilst the Consultant will endeavour to ensure the accuracy of all materials submitted for onward processing, ultimate approval rests with the client and on approval of any works presented by the Consultant for approval, responsibility passes to the client. And approval means either verbally by the Client with the Consultant confirming that approval has been given or in writing (in the form of a letter or e-mail) by the Client.
The Client must notify the Consultant in writing of any complaint relating to the Services (or part thereof) with precise details of the reason within five business days of the reason for the complaint arising.
Notification of complaint does not remove the Client’s obligation to pay any non-related, outstanding invoices without delay or deduction of fees or to defer or refuse a payment for work in progress or to offset sums due against other work covered by a separate proposal.
Any complaint will be carefully considered by the Consultant and may result in an offer to rectify the reason for complaint at no additional charge to the Client. If this remedy is deemed unsatisfactory then the Consultant will seek to reach agreement on a refund of appropriate fees or termination of the contract in which case the Cancellation clause will apply.
9. Indemnifying the Consultant
The Client shall indemnify and keep indemnified the Consultant against all proceedings, costs, claims, expenses and liabilities whatsoever which may arise wholly or in part in consequence of any communication with, use by or demonstration to third parties of any goods or services of the Client, which the Consultant may in accordance with the proposals give, loan or share with third parties. In these circumstances the Consultant will be acting in their capacity as Consultant for the Client.
The above indemnity shall only apply to the extent that the Consultant acts in accordance with the scope of the project with reasonable skill and care and in accordance with all applicable laws and regulations.
10. Consequential loss
The Consultant shall have no liability to the Client for any consequential loss of the Client arising out of or in connection with the provision of any goods or services pursuant to the Contract.
And for the purposes of this clause, liability means any liability arising by reason of any representation, or any breach of any implied term or any duty at common law, or under any statute, or under any express term of the Contract.
And loss means, in relation to the Client, any loss (whether loss of profit or otherwise), damages, costs or other compensation and any legal or other expenses which are awarded against or incurred by or paid or agreed to be paid in settlement of any claim by the Client, however the same may arise and whether occasioned by negligence of the Consultant, its employees or agents or otherwise.
The Consultant will keep all information exchanged in any form with the Client confidential at all times and a Non Disclosure Agreement (NDA) can be exchanged on request by the Client. The Consultant will ensure that NDA’s are exchanged before discussion with third party suppliers as applicable.
The Consultant expects all Clients to respect the Consultant’s confidentiality and not to use any intellectual property exchanged in any form (including any content within a proposal) without the written agreement of the Consultant.
All intellectual property will remain the property of the Consultant (including research and strategy, forward looking information, trends analysis, retail audits, product concepts and specifications, ideation, brand names, brand identities and strap lines and all design work (the Works). This extends to intellectual property exchanged or presented in any written form, information exchanged during meetings (formal or informal) or by any communication means. If it subsequently transpires that the Client has used this intellectual property to their advantage without the payment of appropriate fees, the Consultant will levy a charge accordingly.
Note that failure to pay all fees defined within a proposal or use of any exchanged material or information without payment of the appropriate fees will contravene International Copyright Law and the Consultant will seek to recover all legal costs incurred in pursuant of recovery of appropriate fees and compensation for breach of copyright as determined by court of law.
13. Retention of copyright and title to goods
When applicable, the scope of activity is restricted to the creation of one name and/or one brand concept and strap line and/or one packaging concept (structural and/or graphic) and/or one design concept or product design concept unless specified otherwise. Additional fees will be chargeable if the Client chooses to utilise more than one name and/or one brand concept and strap line and/or one packaging concept (structural and graphic) and/or one design concept or product design concept unless specified otherwise and these fees will be subject to agreement between the Consultant and the Client. This includes the use of more than one name for domain registration purposes irrespective of whether this name has been chosen for creative development or not. Further, the Consultant will retain copyright of all brand names and strap lines, including domain names, brand concepts, packaging concepts (structural and graphic), design work and product concepts presented to the Client by way of speculative or introductory activity (or as part of a project presentation) for which no fees are paid and these may be re-used by the Consultant at their discretion.
All intellectual property and goods supplied under contract will remain the property of the Consultant until all project fees and any third party obligations contracted by the Consultant on a client’s behalf are paid for in full at which point the Consultant will grant an exclusive licence to use without time or geographical limitation.
15. Promotional use
The Consultant reserves the right to use all Works for promotional purposes in perpetuity without restriction.
The Parties (the Consultant and the Client) may communicate by electronic mail. The Parties recognise the risks associated with communication by this medium including misinterpretation, delays, interception and viruses. Neither Party shall hold the other liable for any damage incurred by the use of electronic mail.
17. Professional Indemnity Insurance
The Consultant has £1,000,000 of Professional Indemnity cover and £2,000,000 of Public & Products Liability cover.
This contract shall be governed by English Law.