General Terms and Conditions
These terms and conditions shall govern the contract between (1) A Creative Endeavour Limited trading as ACRE and (2) the Client .
ACRE may agree modifications to these terms but such modifications must be in writing signed by ACRE and cannot be inferred from a course of behaviour.
1. Scope Of Contract
(a) ACRE provides corporate identity brand consultancy, design advice and services relating to the marketing advertising and promotion of the Client’s services and/or goods and the Client’s brand and corporate identity and will provide such advice in accordance with a brief agreed in writing (“the Service”).
(b) If the Client shall have any complaint about the quality of the Service or goods provided then notice shall be given to ACRE within 14 days of delivery. In the absence of such notification the Client shall be deemed to have accepted the supply.
(c) ACRE cannot guarantee the emails sent to it or is agents or representatives will be received and all critical communication should be sent or confirmed by email.
(d) ACRE will accept and act upon instructions communicated to it by any means whatsoever by the Client and/or its representatives, agents or authorised persons and is not obliged to seek verification of such instructions.
2. Client’s Duty To Provide Information
(a) The Client shall be solely responsible for providing ACRE with all necessary information concerning its goods/services, the Service (including the scope of use required), the market and generally. ACRE shall not be responsible for any shortcomings in such information. The Client accepts that its knowledge and experience in its industry sector and the manufacture processing and packaging of its goods/services is vital in this regard.
(b) The Client shall be responsible for providing all necessary permissions, licences and consents, which may be required for the provision of the Service unless ACRE has expressly agreed in writing to do so.
(c) The Client warrants that it holds the necessary licence(s) in respect of materials supplied by the Client to ACRE in connection with the provision of the Service and indemnifies ACRE against all costs, claims, liabilities and losses if this is not the case.
(a) The delivery times of the Service stated by ACRE are reasonable estimates and ACRE shall not be responsible for any delay that is not directly attributable to the fault of ACRE which, for the avoidance of doubt means any circumstances or events beyond ACRE’s reasonable control. Time shall not be of the essence unless expressly agreed in writing. ACRE shall use its reasonable endeavours to meet the Clients timescales.
(b) The Client recognises that for ACRE to be able to perform the Service in a timely fashion and to meet any agreed timetable the Client must respond to enquiries and deal promptly with the signing of and approval of materials submitted to it. The Client acknowledges that if it fails to do so then ACRE cannot be expected to perform the Service within the agreed period of time.
4. Contract Prices/Title
(a) The Contract Price includes agreed studio costs and fees as outlined in the agreed brief for the Service. All reasonable expenses (including materials, print outs, proofs, photography, travelling, accommodation, subsistence, courier fees and electronic costs) (“the Expenses”) will be charged in addition to the Contract Price and are a subject to a handling fee of 15% . The Contract Price and expenses are exclusive of VAT and local tax. No costs will be incurred without prior agreement.
(b) Any estimate of the whole or any part of the Contract Price is given based upon information available to ACRE and shall remain valid for 3 months and is given in good faith and shall be treated as an estimate only and all errors and omissions shall be excepted.
(c) Payment of the Contract Price shall be made in pounds sterling within 28 days of the date of invoice and without any set off or counterclaim (save where such claim is based on fraud). ACRE shall be entitled to charge interest and claim compensation on overdue sums in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. Interest will be calculated from the invoice date to the date of payment.
(d) The Client may not withhold payment of any part of the Contract Price or the Expenses or any other monies due to ACRE, by reason of claims or alleged claims against ACRE unless the amount to be withheld has been agreed in writing by ACRE as due to the Client or has been awarded in an adjudication, arbitration or litigation in favour of the Client in relation to the same project and save as aforesaid rights are set off and excluded.
(e) Title to or license to use any property or intellectual property forming part of the Service shall pass to the Client when and only when the full Contract Price for the Service has been paid.
(f) Where the Contract is quoted in stages then each such stage shall be under these conditions and ACRE shall be entitled to invoice the Contract Price of each stage upon completion.
(g) For new business or overseas clients, ACRE may, at its discretion, invoice up to 50% of the total estimated fees and/or costs in advance and will not commence work until this has been settled. ACRE reserves the right to change payment terms with new clients.
(h) All Expenses may be invoiced prior to commissioning and ACRE reserves the right to wait until such costs have been paid before commencing work.
(i) ACRE reserves the right to withhold final delivery of work until all of its fees and expenses have been paid in full. This is with exception of the final stage payment which can be made when the final assets are delivered and approved.
(j) Unless otherwise agreed in writing the Contract Price will make provision for up to two sets of reasonable and minor author corrections and further corrections shall be charged for as additional work.
(k) The Client shall pay ACRE any expenses incurred by or in connection with the recovery of monies owing by the Client to ACRE.
5. Intellectual Property
(a) Reservation of Technical and Artistic Concepts: ACRE will not infringe the Clients rights/interest in the Final Graphic Design but reserves exclusive right to use all other designs software concepts ideas or intellectual property developed during the course of the Service.
(i) ACRE will retain all intellectual property rights in relation to the computer software (including any code) developed for the Client during the course of the Service (“the Software”).
(ii) ACRE may use licensed software in the provision of the Service. Any such use is personal to ACRE and it may be necessary for the Client to obtain its own licence(s). In such circumstances ACRE will (where it is expressly agreed as part of the Service), advise upon the licence(s) required and use its reasonable endeavours to assist the Client to obtain the relevant licence(s).
(iii) ACRE is not liable for the costs thereof or (save to the extent provided) any failure of the Client to hold the necessary licence(s).
(c) Sub-contractors Intellectual Property
(i) ACRE will use all reasonable endeavours to secure the relevant intellectual property rights of its subcontractors.
(ii) Clients are reminded that illustrators and photographers usually retain ownership of their original work and may demand its return undamaged although this should not restrict the Client’s use of any illustration or photograph within the negotiated usage rights.
(d) Originality ACRE warrants that its own design work is original and that it will not knowingly or negligently infringe the rights or intellectual property of a third party but (unless expressly agreed to the contrary) it is under no obligation to make any enquiry in this respect and it shall have no liability to the Client in respect of any infringement or alleged infringement of intellectual property or passing off.
(e) Further Assurance ACRE will on demand and at the cost of the Client execute such documents and do such things as are necessary to give effect to this clause.
6. Cancellation Of Contract
(a) The Client shall be entitled to cancel the Service at any time upon 30 days written notice and thereupon shall immediately pay to ACRE all fees due up to cancellation plus and all disbursements which cannot be cancelled.
(b) Following cancellation and subject to the payment to ACRE of all sums due (but being not less than 50% of the Contract Price for the Service in respect of which ACRE was engaged) the Client shall be entitled to select and will receive title and intellectual property rights in accordance with clause 6 in one of the designs that have been presented to the Client prior to the date of cancellation.
(c) All materials relating to any other designs presented by ACRE shall be returned forthwith. For the avoidance of doubt unless a minimum of 50% of the Contract Price has been paid to ACRE the Client shall receive no rights in respect of any design materials or intellectual property.
7. Website Development
(a) The Client acknowledges that any new inventions, designs or processes which evolve in the provision of the Service unless in relation to website or software development otherwise agreed shall belong to ACRE.
(b) The Client shall take exclusive responsibility to ensure that any agreed specification contains full details of, and adequately reflects the Client’s business and/or financial requirements in relation to any website commissioned by the Client.
(c) The Client acknowledges that the website shall only be compatible or tolerable with the platforms, browsers and operating systems set out in the website specification and will only operate to any performance benchmark set out in the specification.
(d) On completion of the website developed by ACRE the Client shall carry out an acceptance test for the purpose of confirming that the website has been successfully completed in accordance with the specification. The Client shall report any errors to ACRE within 30 days of delivery including any additional information which may correct the error. If the Client fails to notify ACRE within this time period the website shall be deemed accepted by the Client.
(e) ACRE will use reasonable endeavours to correct any errors and supply a corrected version of the website to the Client as soon as reasonably practicable.
8. Duty Of Confidentiality
(a) Each party will use its best endeavours to preserve the confidential information of the other and will comply with the other’s reasonable requirements in this regard. The Client recognises that ACRE’s methods of working and pricing structures are proprietary and are not generally in the public domain.
(b) Each party shall comply with their obligations under the Data Protection Act 1998 relating to the use and storage of personal data.
9. Client’s Responsibility For Implementation
(a) In the case of graphic designs full responsibility for implementation, display, electronic integration and compatibility, back up, production and manufacture of the Service shall remain with the Client.
(b) The Client shall indemnify ACRE in respect of any claim howsoever arising under consumer protection or other legislation other than due to a default of ACRE.
(c) Failure to consult ACRE on implementation may result in unsatisfactory implementation.
(d) In the case of electronically displayed designs Clients are reminded that they may need to obtain relevant licenses for proprietary software, and once the final electronically displayed design has been shown, the Client must then inform ACRE of all final required alterations within 7 days and upon completion of them the design will be deemed to have been accepted.
10. Limitation Of Liability
(a) The liability of ACRE under the Contract or in tort (other than in respect of death or personal injury) shall not exceed the greater of the sums paid by the Client under the contract or such sum as shall be receivable by ACRE in respect of any claim under any insurance policy effected by ACRE from time to time. ACRE warrants that it maintains insurances and that the cover is better if these conditions apply.
(b) ACRE shall not be liable for any indirect or consequential loss (including loss of sales/profit, loss of production/goodwill/reputation, or packaging or distribution costs)
(c) If the Service includes the provision of sub-contractors then ACRE will advise on and procure the services of subcontractors who ACRE is satisfied are reasonably professionally competent. ACRE will, within reason, be responsible for any default of any third party or sub-contractor, manufacturer or supplier.
(d) Where an error is found in delivered work that is the responsibility of ACRE then the liability of ACRE shall be limited to correcting or replacing (as appropriate) the work.
(e) ACRE warrants that it maintains such insurances as are reasonable and normal in its industry. (f) The Client accepts reasonable tolerances in relation to the Service including in respect of, inter alia, paper quality and colour.
(g) ACRE shall not be responsible for any errors apparent in artwork, copy or proofs that have been signed off by or on behalf of the Client.
11. Publicity And Examples
(a) ACRE requests written approval from the Client to have the right to use the work created as part of the Service for its own promotional purposes including awards and associated publicity; use of the work for public relation and editorial purposes, inclusion in portfolios and on its website. For the avoidance of doubt any use by ACRE of the work shall be strictly limited to the stated purpose of promoting ACRE’s business. This request will not be unreasonably withheld.
(b) A Creative Endeavour Limited hereby reserves and asserts all moral rights.
(a) All notices to be given under this Contract shall be in writing and shall be delivered via email.
(b) Each notice shall be addressed to the principal place of business of the party concerned or to such other address as that party shall have previously notified to the other.
(a) The Contract shall be subject to English Law and under the non-exclusive jurisdiction of the English Courts .
(b) ACRE is the trade name of A Creative Endeavour Limited a company registered in England and Wales under company number 14624341 whose registered office is as 20 Tulse Hill, SW2 2RP London.
(c) Any of these provisions, which may be unenforceable shall (to that extent) be severable
Date: 1st July 2023