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, packaging design, point of sale, exhibitions, SEO, social media, commercial interiors, signage and livery, copywriting, illustration, artworking, print management, 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. BASIS OF CONTRACT
- 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 retain the right to charge for the work that has taken place.
3. SUPPLY OF SERVICES
- 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. CUSTOMER’S OBLIGATIONS
- 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. CHARGES AND PAYMENT
- 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. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
- 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). Arch Creative may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Arch Creative to the Customer.
6. INTELLECTUAL PROPERTY RIGHTS
- 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. LIMITATION OF LIABILITY
- 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party];
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver; (i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2(b) to clause 9.2(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(l) the other party’s financial position deteriorates to such an extent that their capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
- 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 this Contract on the due date for payment and fails to pay all outstanding amounts within 14 days after 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 under the Contract or any other contract between the Customer and Arch Creative if the Customer becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(m), or Arch Creative reasonably believes that the Customer is about to become subject to any of them.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
- (a) the Customer shall immediately pay to Arch Creative all of the Arch Creative’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Arch Creative shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- (b) the Customer shall return all Deliverables which have not been fully paid for. If the Customer fails to do so, then Arch Creative may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
- (c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
- (d) clauses which expressly or by implication survive termination shall continue in full force and effect.
11. FORCE MAJEURE
- 11.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Arch Creative including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Arch Creative or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation nor direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
- 11.2 Arch Creative shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
- 11.3 If the Force Majeure Event prevents Arch Creative from providing any of the Services for more than four weeks, Arch Creative shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
- 12.1 Assignment and other dealings.
(a) Arch Creative may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of Arch Creative, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
- 12.2 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
- 12.3 Severance.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- 12.4 Waiver.
A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- 12.5 No partnership or agency.
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
- 12.6 Third parties.
A person who is not a party to the Contract shall not have any rights to enforce its terms.
- 12.7 Variation.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by Arch Creative.
- 12.8 Governing law.
This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
- 12.9 Jurisdiction.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).