Terms of business
1.1 In these conditions:
“CDS” means Cohesion Design Services Limited (Registered Number 4630265) whose registered office is at 27 New Dover Road Canterbury Kent CT1 3DN
“Charges” means the charges for the Services which are specified in the Estimate as the same may be varied from time to time pursuant to the terms hereof
“the Client” means the person firm or company with whom the Contract is made
“Conditions” means the standard terms and conditions set out in this document and/or any specified in the Estimate and unless the context otherwise requires includes any special terms and conditions agreed in writing between the Client and CDS
“the Contract” means the Contract for the provision of the Services
“Estimate” means CDS’ estimate which accompanies these conditions
“Intellectual Property Rights” means copyright and related rights, rights in design, trade marks, trade names, rights in get-up or goodwill or to sue for passing-off and any other intellectual property rights in each case whether registered or unregistered and including all rights to apply for registration of such rights and all other similar rights in any part of the world
“Service Commencement Date” means the date referred to as the commencement date in the Estimate
“the Services” means the services to be provided by the CDS for the Client as more particularly described in the Estimate
“Works” means any designs, products, photographs or typographical arrangements which are to be prepared for the Client by CDS in the provision of the Services
1.2 Any reference in the Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in the Conditions are for convenience only and shall not affect their interpretation.
2. Supply of the Services
2.1 CDS shall supply the Services in accordance with the Estimate subject to CDS acceptance of the Estimate duly signed and returned by the Client and subject further to the Conditions, which will govern the Contract to the exclusion of any other terms and conditions subject to which the Estimate is accepted or purported to be accepted, or any order is made or purported to be made by the Client.
2.2 No variation to the Conditions shall be binding unless agreed to in writing by a director of CDS.
2.3 CDS may at any time, without notifying the Client, make any changes to the Services which are necessary to comply with any applicable or other statutory requirements, or which do not materially affect the nature or quality of the Services.
2.4 CDS’ employees or agents are not authorised to make any representations concerning the Services unless confirmed by CDS in writing. In entering into the Contract the Client acknowledges that it does not rely on and waives any claim for a breach of any such representations which are not so confirmed.
2.5 This agreement shall take effect from the Service Commencement Date and will continue (subject to earlier termination in accordance with the terms of the Contract) until completion of the Services or until terminated by either party upon not less than one month’s written notice to the other.
2.6 The Client authorises CDS (if CDS should in its discretion think fit to do so) to engage a sub-contractor to provide some or all of the Services.
2.7 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by CDS shall be subject to correction without any liability on the part of CDS.
2.8 The Client and CDS do not intend any employees to transfer to CDS, whether by operation of law or otherwise as a result of entering into the Contract. The Client shall indemnify CDS and keep CDS indemnified from and against any liability, loss or damage which CDS may incur in relation to any employee or former employee of the Client or of any of the Client’s agents or contractors, which arises out of or in connection with the application of the Transfer of Undertaking (Protection of Employment) Regulations 1981 (as amended or replaced from time to time) to the arrangements contained within the Contract.
2.9 Unless otherwise agreed in writing the Conditions shall apply to all future services supplied to the Client by CDS
3.1 The Client shall pay to CDS the Charges for the Services and such Charges as may be revised by CDS. CDS shall be entitled to revise the Charges by giving to the Client at least 30 days prior written notice of the revised Charges. On expiration of said notice period and save as otherwise agreed between CDS and the Client the revised rate of Charges shall apply and be payable by the Client for the Services.
3.2 The Charges are exclusive of any value added tax which the Client shall be additionally liable to pay.
3.3 CDS reserves the right, by giving written notice to the Client at any time before commencement of the Services to increase the Charges for the Services to reflect any increase in the cost to CDS which is due to any factor beyond its control or which is due to delay caused by any instructions of the Client or the failure of the Client to give CDS adequate information or instructions.
4.1 Payment of the Charges and the VAT shall be due within 15 days of the date of CDS’ invoice. Time for payment shall be of the essence.
4.2 If the Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to CDS, CDS shall be entitled to:
4.2.1 cancel the Contract or suspend any further performance of the Services for the Client;
4.2.2 charge the Client interest on the amount unpaid at the rate of 5% per annum above the National Westminster Bank Plc base rate from time to time, until payment is made in full and the Client agrees to indemnify CDS in respect of all legal costs and expenses by CDS in seeking to obtain payment in full.
4.3 CDS’ obligations under this agreement shall be conditional upon the Client having paid all Charges then due to CDS.
4.4 All sums due to CDS under this agreement shall be made in full without any set-off, restriction or condition and without any deduction for, or on account of, any counter claims.
4.5 Subject to any special terms agreed in writing between the Client and CDS, CDS shall be entitled to invoice the Client as it sees fit at any time during the provision of the Services
4.6 In addition to the charges CDS shall be entitled to charge the Client for any expenses incurred on the Client’s behalf which CDS reasonably believes are necessary for the proper performance of the Services including (but not limited to) fees for postage or couriers
5. Warranties and Liability
5.1 CDS will endeavour to perform the Services within the time agreed in writing with the Client or, if no time is agreed, within a reasonable time but it must be understood that such dates quoted for delivery of the Works are (except where agreed otherwise in writing) approximate only and CDS shall not be liable for loss or damage of any kind whatsoever, caused directly or indirectly by any delay in the performance of the Services. Time for performance of the Services shall not be of the essence, unless previously agreed to by CDS in writing.
5.2 The Client acknowledges that CDS’ obligations and liabilities in respect of the Contract are exhaustively defined in these Conditions. It is accepted that CDS will not be liable for any indirect or consequential loss (including but not limited to loss of profit), damage, cost or expense of any kind.
5.3 CDS accepts liability:
5.3.1 to the extent that it results from negligence of CDS and/or its employees for death or personal injury without limitation;
5.3.2 in respect of losses arising from typographical errors or omissions in the Works due to the negligence of CDS and/or its employees up to the cost of reproducing reprinting or rectifying the Works;
5.3.3 in all other cases not falling within this clause 5.3 CDS’ total liability (whether in contract, tort (including negligence) or otherwise) under or in connection with the Contract will not in any event exceed the fees receivable in respect of the Contract in the year in which the liability arises. If the Client wishes to protect itself against any greater loss or expense it is hereby put on notice that it should put in place appropriate insurance.
5.4 It is accepted that CDS shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in delivering the Goods and/or performing, or any failure to perform, any of CDS’ obligations in relation to the Services, if the delay or failure was due to any cause beyond CDS’ reasonable control.
5.5 CDS shall not have any liability for any claim, unless made with any reasonable detail in writing to CDS no later than 90 days (or such longer period as may be reasonable in the circumstances) after the date the Client (or its employees, agents or sub-contractors) becomes aware, or should have become aware, of the claimable event.
6.1 This Condition applies if:
6.1.1 the Client (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or
6.1.2 the Client ceases, or threatens to cease, to carry on business; or
6.1.3 CDS reasonably apprehends that if any of the events mentioned above is about to occur in relation to the Client it notifies the Client accordingly; or
6.1.4 the Client commits any breach of these Conditions
6.2 If this Condition applies then, without prejudice to any other right or remedy available to CDS, CDS shall be entitled to cancel the Contract without any liability to the Client, and if the Services have been performed the Charges shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
7. Intellectual Property
7.1 Subject to clause 7.2 CDS shall own the Intellectual Property Rights in the Works
7.2 On payment in full of all Charges to CDS by the Client CDS agrees upon receiving a written request by the Client and at the Client’s expense to assign the Intellectual Property Rights in the Works to the Client provided always that:
7.2.1 CDS shall have an irrevocable royalty free licence to use the Intellectual Property Rights in the Works for its own benefit in its advertising and as examples to show to other clients or prospective clients
7.2.2 unless otherwise agreed in writing by CDS the Client shall have no rights in the Intellectual Property Rights of any background or working materials created or used by CDS in the provision of the Services
7.3 The Client hereby warrants and undertakes that any materials it provides to CDS shall not infringe the Intellectual Property Rights of any third party
8.1 These Conditions and all other express terms of the Contract shall be governed and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts.
8.2 No waiver by CDS of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
8.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the provisions of these Conditions and the remainder of the provisions in questions shall not be affected.
8.4 CDS may assign the benefits of the Contract without the primary written consent of the Client.