In these Conditions, the following definitions apply:
Advance Fee: The advance fee quoted in the Quotation.
Arch Creative: Arch Creative Consultants Limited registered in England and Wales with company number 05680910.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.7.
Contract: the contract between Arch Creative and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from Arch Creative.
Deliverables: the deliverables set out in the Order produced by Arch Creative for the Customer as part of the Services.
Existing Client: a person or company for whom Arch Creative have provided Services to previously.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
New Client: a person or company for whom Arch Creative have not provided Services to previously.
Order: the Customer’s written acceptance of the Arch Creative’s Quotation.
Quotation: the formal statement to supply the Services required by the Customer at a certain price within a certain timescale.
Services: the services supplied by Arch Creative to the Customer as set out in the Quotation which may include but are not limited to any services in connection with direction, brand strategy, packaging design, point of sale, exhibitions, campaigns, motion and animation, performance marketing, PPC, paid social campaigns, SEO, social media and community management, content creation, commercial interiors, signage and livery, copywriting, illustration, artworking, print management, web design and development, e-commerce solutions, technical support, managed services, animated presentations and video.
In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes e-mails.
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 An Order shall only be deemed to be accepted from a New Client when Arch Creative receives payment of the Advance Fee and it is on this date the Contract shall come into existence.
2.3 An Order shall only be deemed to be accepted from an Existing Client:
(a) when Arch Creative indicates so in writing; or
(b) if an Advance Fee is necessary due to the nature of the Services, when Arch Creative receives payment of the Advance Fee, and it is on this date that the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Arch Creative which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter or advertising issued by Arch Creative, and any descriptions or illustrations contained in Arch Creative’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.7 Any Quotation given by Arch Creative shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.8 Should the Customer cancel the Contract before the supply of the Services, Arch Creative retains the right to charge for the work that has taken place.
3.1 Arch Creative shall supply the Services to the Customer in accordance with the Quotation in all material respects.
3.2 Arch Creative shall use all reasonable endeavours to meet any performance dates specified in the Quotation but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Arch Creative shall have the right to make any changes to the Services which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the Services, and Arch Creative shall notify the Customer in any such event.
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides are complete and accurate;
(b) ensure that any information it provides does not infringe on the Intellectual Property Rights of any other person;
(c) ensure that any information it provides is not unlawful or inappropriate and does not contain a virus or hostile program;
(d) co-operate with Arch Creative in all matters relating to the Services; and
(e) provide Arch Creative with such information and materials as Arch Creative may require in order to supply the Services, and ensure that such information is accurate in all respects.
4.2 If Arch Creative’s performance of any obligation under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) Arch Creative shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Customer remedies the Customer Default and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Arch Creative’s performance of any of its obligations;
(b) Arch Creative shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Arch Creative’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse Arch Creative on written demand for any costs or losses sustained or incurred by Arch Creative arising directly or indirectly from the Customer Default.
5.1 The Charges for the Services shall either be on a fixed fee basis or calculated on an hourly rate but:
(a) the Charges shall be calculated in accordance with fees as set out in the Quotation; and
(b) Arch Creative shall be entitled to charge the Customer for any expenses reasonably incurred for the cost of services provided by third parties and required by Arch Creative for the performance of the Services, and for the cost of any materials.
5.2 Arch Creative reserves the right to invoice the Customer on completion of the Services or on a weekly or monthly basis, depending on the nature of the Services.
5.3 The Customer shall pay each invoice submitted by Arch Creative:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Arch Creative, and time for payment shall be of the essence of the Contract.
5.4 If the Customer fails to make any payment due to Arch Creative under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per cent per annum above the Bank of England’s base rate from time to time, pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
5.5 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Arch Creative, unless it has been expressly stated that they are to transfer to the Customer.
6.2 All Intellectual Property Rights in or arising out of or in connection with the Services which are to transfer to the Customer shall be owned by Arch Creative until full and final payment of the Charges, at which time they shall be transferred to the Customer.
6.3 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on Arch Creative obtaining a written licence from the relevant licensor on such terms as will entitle Arch Creative to license such rights to the Customer.
6.4 All Arch Creative materials are the exclusive property of Arch Creative.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, quotations, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract.
The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
This clause 7 shall survive termination of the Contract.
8.1 Nothing in these Conditions shall limit or exclude Arch Creative’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1, Arch Creative shall under no circumstances be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, either party shall have the right to terminate the Contract by giving the other party one months’ written notice.
9.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of the Insolvency Act 1986;
(c) the other party commences negotiations with its creditors or enters into any compromise or arrangement with them other than for the purpose of a solvent amalgamation or reconstruction;
(d) a petition is filed or an order is made for the winding up of the other party;
(e) the other party becomes subject to bankruptcy;
(f) a creditor or encumbrancer takes possession of the whole or any part of its assets;
(g) an administrator or receiver is appointed;
(h) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(i) the other party’s financial position deteriorates to such an extent that its ability to fulfil its obligations under the Contract has been placed in jeopardy; or
(j) the other party (being an individual) dies or becomes incapable of managing their own affairs.
9.3 Without limiting its other rights or remedies, Arch Creative may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and fails to pay all outstanding amounts within 14 days of being notified in writing to do so.
9.4 Without limiting its other rights or remedies, Arch Creative shall have the right to suspend provision of the Services if the Customer becomes subject to any of the events listed in clause 9.2.
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to Arch Creative all outstanding unpaid invoices and interest;
(b) the Customer shall return all Deliverables which have not been fully paid for;
(c) the accrued rights, remedies, obligations and liabilities of the parties shall be unaffected; and
(d) clauses which expressly or by implication survive termination shall continue in full force and effect.
11.1 For the purposes of this Contract, a Force Majeure Event means an event beyond the reasonable control of Arch Creative including (without limitation) strikes, industrial disputes, failure of utilities or transport networks, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, accident, fire, flood or default of suppliers or subcontractors.
11.2 Arch Creative shall not be liable for delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.
11.3 If the Force Majeure Event continues for more than four weeks, Arch Creative may terminate the Contract immediately by giving written notice to the Customer.
12.1 Assignment and other dealings
(a) Arch Creative may assign, transfer, subcontract or otherwise deal with its rights and obligations under the Contract.
(b) The Customer shall not assign or transfer its rights or obligations without prior written consent.
12.2 Notices
Any notice shall be in writing and shall be deemed received in accordance with these Conditions.
12.3 Severance
If any provision is held to be invalid or unenforceable, the remaining provisions shall remain in full force.
12.4 Waiver
No failure or delay in exercising any right shall constitute a waiver of that right.
12.5 No partnership or agency
Nothing in the Contract shall create a partnership, joint venture or agency relationship.
12.6 Third parties
No person who is not a party to the Contract shall have any rights to enforce its terms.
12.7 Variation
No variation of the Contract shall be effective unless agreed in writing and signed by Arch Creative.
12.8 Governing law
This Contract shall be governed by and construed in accordance with the law of England and Wales.
12.9 Jurisdiction
The courts of England and Wales shall have exclusive jurisdiction.