1. Definitions and Interpretation:
1.1 The following terms as used herein shall have the meaning as stated:
Project Proposal: the Company’s written acknowledgment of the Client’s instructions to the Company to undertake work for the Client;
Fees: the charges, costs, disbursements and expenses referenced in the Project Proposal, or subsequently notified to the Client;
Company: Jedco Product Designers Limited;
Conditions: these terms and conditions;
Contract: a Contract between the Company and the Client for the supply of Services, as evidenced by the Client’s written acceptance of the Project Proposal;
Client: the party named as the Client in the Project Proposal;
Design: the final design to be produced by the Company for the Client in accordance with the Contract;
Design Service: the design service to be undertaken by the Company in accordance with the Contract;
Third Party Contractor: any third party engaged by the Client (or by the Company on behalf of the Client) to undertake any services or supply any goods to the Client;
Input Material: any materials or information provided by the Client to the Company in relation to the Services;
Output Material: any materials or information or initial concepts provided by the Company to the Client in relation to the Services;
Services: those services referenced in the Project Proposal, including the Design Service and any other services to be provided by the Company in accordance with the Contract.
2. Application of Conditions:
2.1 No Contract shall come into existence other than by the Client accepting the Project Proposal in writing.
2.2 The Contract may not be terminated by the Client without the Company’s prior written consent and subject to the payment to the Company of all Fees payable up to and including the date of termination.
2.3 The Contract shall be governed by these Conditions to the exclusion of any other terms or conditions.
2.4 No amendment of these Conditions shall be valid unless agreed in writing by the parties hereto.
3. Obligations of the Parties:
3.1 The Client shall be solely responsible at the outset for establishing that the work outlined in the Project Proposal complies with all applicable laws and regulations and for notifying the Company of any applicable laws and regulations which may affect the Company’s obligations under the Contract.
3.2 The work outlined in the Project Proposal will be subject to the Society of Chartered Designers’ Conditions of Engagement and Code of Professional Conduct.
3.3 The Company will carry out the Services set out in the Project Proposal. The Client acknowledges that:
(a) any changes, alterations or additions to the Services or any related materials will incur additional Fees which will be submitted to the Client for approval prior to expenditure; and
(b) any performance timescales given by the Company are estimates only and the Company shall not be liable for any delay in performing the Services, unless the Company has agreed in writing to abide by any specific performance date(s).
3.4 When the Services are to be performed in separate stages they will be and invoiced upon the completion of each stage, as outlined in the Project Proposal.
3.5 The Company warrants that the Services will be performed with reasonable skill and care.
3.6 All obligations of the Company under the Contract shall be deemed to have been fulfilled and the Services deemed to have been completed and accepted by the Client upon delivery of the Design to the Client.
3.7 Unless otherwise agreed in writing The Client shall be solely responsible for undertaking suitable product testing in order to ensure that the Design (or any product embodying or incorporating the Design) is fit for purpose and for putting in place appropriate product liability insurance.
3.8 The Client acknowledges that the Company cannot accept any liability on behalf of the Client or any Third Party Contractor. In particular, the Company shall have no liability for:
(c) any deviation from any Design occasioned by the Client or any Third Party Contractor;
(d) the advice, actions or workmanship of any Third Party Contractor;
(e) any materials provided or used by any Third Party Contractor;
(f) the consequences of any delay or inaction of any Third Party Contractor or the Client.
3.9 The Client agrees to hold the Company harmless and indemnify the Company against all liabilities, costs, damages and expenses which the Company may incur as a result of any matter identified in clause 3.8.
3.10 The Company shall have the right to publicise the Company’s association with the Client and to use for promotional purposes any description, illustration or photograph of the Design (or any product embodying or incorporating the Design) immediately following the publication of the Design (or any product embodying the Design) in the public domain.
3.11 The Company asserts its moral right in accordance with Sections 77 and 78 of the Copyright, Designs and Patents Act 1988 to be identified as the author of the Design (or any product embodying or incorporating the Design) and the Client shall ensure that any publication relating to the Design (or any product embodying or incorporating the Design) bears a clear and distinctive credit to the Company.
4. Intellectual Property Rights and Confidential Information:
4.1 The Client grants the Company permission to use all Input Material in any manner in which the Company deems fit for the purposes of performing the Services.
4.2 The Client warrants that all Input Material is accurate and complete and belongs to or is licensed to the Client and that all use made thereof and work done in accordance with the Client’s instructions shall not infringe any intellectual property rights of any third party. The Client shall hold the Company harmless and shall fully and promptly indemnify the Company against all liabilities, costs, damages and expenses which the Company may incur as a result of any use made thereof or work done as aforesaid which infringes any third party intellectual property rights.
4.3 All intellectual property rights in relation to the Design, the Services and the Output Material shall vest in and belong solely and exclusively to the Company.
4.4 Subject to the prior payment to the Company of all Fees payable under the Contract, the Company will transfer the intellectual property rights in the Design to the Client, unless the Contract has been terminated by either party.
4.5 The transfer of the intellectual property rights in the Design to the Client in accordance with clause 4.4 shall not affect the Company’s rights under clause 3.10 or clause 3.11.
4.6 The Client and the Company agree that in the course of the Company providing the Services to the Client, the parties may disclose to each other certain information which is confidential to the disclosing party. The information may be confidential because it has been marked or designated as such by the disclosing party, or because the information should reasonably be supposed by the receiving party to be confidential. The Client and the Company agree that each party will maintain the confidentiality of the confidential information and not disseminate it to any third party without the disclosing party’s prior consent, save that this obligation shall not apply to any confidential information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party. The Client and the Company agree not to use any confidential information for any purpose other than the discharge of their respective obligations under the Contract.
5. Fees and Payment:
5.1 The Fees payable under the Contract shall be those which are referenced in the Project Proposal or subsequently notified to the Client and all such Fees are exclusive of Value Added Tax. All predictable costs, disbursements and expenses have been included in the Project Proposal, unless otherwise stated therein. Any additional unforeseen costs, disbursements and expenses will be submitted to the Client for approval prior to expenditure.
5.2 The Company’s payment terms are 30 days from date of invoice. Time for payment shall be of the essence.
5.3 If the Client fails to pay to the Company any sum due to the Company on or before the date that such sum falls due for payment, then the Company shall be entitled to charge the Client interest thereon at a rate of five per cent (5%) per annum above the Bank of England’s Base Rate or the allowable rate of interest chargeable on commercial debts (whichever is the higher) from the date that such sum falls due until the same has been paid to the Company.
5.4 Without limiting any other right or remedy available to the Company (up to and including termination of the Contract), the Company reserves the right to suspend any further work under the Contract and to withhold delivery of the Design and the transfer of intellectual property rights in the Design to the Client, if any Fees payable to the Company have not been paid in full.
6. Warranties and Liability:
6.1 The following provisions set out the Company’s financial liability to the Client in respect of:
(a) any breach of these Conditions;
(b) any use made by the Client of any of the Services; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
6.2 Except for the warranty given by the Company in clause 3.5, all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
6.3 Nothing in these Conditions excludes or limits the Company’s liability:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude the Company’s liability; or
(d) for fraud or fraudulent misrepresentation.
6.4 Subject to clause 6.2 and clause 6.3:
(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance of the Contract shall be limited to the amount of the charges paid by the Client for the Services; and
(b) the Company shall not in any event be liable to the Client for loss of profit, economic loss, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
6.5 The Client acknowledges that the provisions of this clause 6 are reasonable and are reflected in the charges payable for the Services, which would be higher without such provisions.
6.6 The Company maintains Professional Indemnity Insurance in order to provide coverage for any liability to the Client which may arise under this clause 6. The Company’s insurers are Hiscox Insurance Co Ltd and the relevant policy number is HU PI6 1918130(5).
7.1 The Contract constitutes the entire agreement between the parties hereto and neither party shall be bound by any other statement or representation made to the other.
7.2 No variation to the Contract shall be effective unless agreed in writing by the parties hereto.
7.3 In the event that any part of the Contract shall be held to be unenforceable by a court of competent jurisdiction, then the remainder thereof shall remain in full force and effect.
7.4 The Contract shall be construed in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English Courts.