General Terms & Conditions
1. Contract: This document sets out the general terms and conditions (“Conditions”) governing the contract between Breckenridge & Viana Limited (registered number 01683392) (“we” or “us”) and the client (“client” or “you”). Any proposal made by us in relation to a possible engagement is an offer to treat. Your acceptance of the proposal (including where the original proposal is varied) constitutes and offer, and the contract is finally concluded when one of the following occurs:
1.1 we confirm unconditional acceptance of your offer; or
1.2 we commence work after receipt of your offer without notifying you of our unconditional acceptance.
2. These Conditions override any terms that you may have sent to us prior the contract being concluded and also override or any other written correspondence or verbal communication including any advice or recommendation made by us before we entered into a binding legal contract with you on the terms set out in the proposal. These Conditions also prevail of any terms implied by trade custom, practice or course of dealing.
3. These Conditions may be varied by us from time to time but any such variation shall not be binding upon you in relation to Services (as hereinafter defined) to be provided pursuant to binding contracts entered into before you were notified of such changes.
4. Where the Services are provided subject to particular terms and conditions specific to the type of Service being provided (including, but not limited to, Services provided on a retainer basis) or to the particular contract, (“Special Terms”) then to the extent that these Conditions are inconsistent with the applicable Special Terms, then the latter shall prevail.
5. Any non-material typographical or clerical errors or omissions in proposal, or in any other document issued by us, may be changed by us without our incurring any liability to you for so doing, and shall not invalidate your unconditional acceptance of the proposal.
6. Authority to contract: we shall be entitled to assume that a contract (and any subsequent variations to that contract) entered into with the client is valid and binding on the client and that the person purporting to contract on behalf of the client has the requisite authority to bind the client.
7. Service levels: Once the contract has been concluded, we shall provide the services set out in the proposal (“Services”) in all material respects (including commencing to provide the Services no later than the start date specified in the Proposal) in accordance with the terms of the proposal and using all reasonable skill and care. We will, subject to the next paragraph, provide the Services in a timely fashion but any time deadline set out in the proposal is only an estimate. And time shall not be of the essence.
8. The proposal may specify that a deposit is required prior to work commencing. If so, work on providing the Services will not commence until deposit monies have been received and cleared.
9. All samples, drawings, descriptive matter, specifications and advertising issued by us and any descriptions or illustrations contained in our website, 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 our contract with you and you acknowledge that the contract this is not a sale by sample.
10. Where the Services include the delivery of printed materials, every reasonable endeavour will be made by us to deliver the correct quantity ordered, but owing to the difficulty of producing exact quantities, estimates are conditional upon a margin of 5 per cent (in colour work 10 per cent), being allowed for overs or shortages, the same to be charged or deducted.
11. All quotations in a proposal relating to the provision of hosted Services are, unless we have agreed otherwise with the client, made on the basis that those Services have been designed to run on our recommended hosting platform which enables us to have unfettered access and the ability to apply any relevant server updates and patches. Where Services are required by the client to be run on another hosting platform, it shall provide us with all necessary server access in order for us to confirm the technical feasibility of using the required alternative hosting platform and our consent to provide Services on any such alternative platform is subject, where applicable, to our being able to reach mutually agreeable terms with the host provider.
12. Web space provided as part of our service cannot and is not monitored by us and we cannot and do not guarantee sites are free of illegal content or other materials that are unacceptable. The client assumes sole responsibility for content of their website owned and or operated by them within our domain or other domains hosted on our network. Upon termination of our Services it is the clients’ responsibility to back up their web content and to maintain hosting and domain renewal. The client is responsible for obtaining permission from any third party for content stored on their website along with any dispute/s relating to their website. Any on-line marketing, AdWords, SEO, Pay per click and web maintenance carried out by us for our client on their website will be monitored by us and the client will be advised on analytics and what results to expect.
13. We shall not be required to provide goods or services which in our opinion contravene any applicable laws, regulations or codes, nor shall we be liable to the client for Services provided by us which are only subsequently held by a competent regulatory authority to do so.
14. The client shall indemnify us from and against any loss or liability in respect of any statements in relation to the client’s goods and services which contravene any applicable laws, regulations or codes.
15. Cancellation: Once the contract has been concluded, it may not be cancelled, deferred or postponed by the client without our consent, which consent may be given or withheld at our entire discretion, and if given may be on such terms as we think fit. Without prejudice to the foregoing, the minimum cancellation charge we require to be paid is 50% of the price quoted in the proposal.
16. We act as principals, and not as the agent of the client, when contracting with all media organisations, and the placing of all advertisements is subject to the terms of the contracts between the relevant media organisations and ourselves. The client acknowledges that the rates and other contractual terms are subject to amendment in accordance with the terms of those contracts. Accordingly, any cancellation, deferment or postponement required by a client can be made only accordance with those contract terms.
17. We reserve the right to cancel summarily and at our discretion any uncompleted balance of contract order or work undertaken, and thereupon to charge clients’ for work to date and irrecoverable commitment on their behalf existing at the time. Such accounts to be due for immediate payment notwithstanding any credit terms which may have been agreed. Cancellation of order is only recognised if acknowledged by us in writing.
18. Invoicing: In the absence of any agreement to the contrary, all work comprised in the Services will be progress invoiced throughout different stages of the work as set out in the proposal, with the final invoice rendering when the Services have been delivered in full. Where the law permits, title in goods (whether physical or digital) comprised in the Services remains with us until we have been paid in full (including, where applicable interest due in respect of late payment).
19. Payment and interest on late payment: Our terms for payment are 30 days net from the date of invoice, unless a special agreement exists and has been confirmed in writing. Where payment is not received on the due date, we reserve the right to charge the client interest on the amount outstanding at the end of the 30 day period at the rate of 5% per annum, accruing daily and compounded at the end of the 30 day period and thereafter at 8% per annum, accruing daily and compounded monthly.
20. All amounts due to us shall be paid without deduction or set-off of any kind.
21. Variations: All work produced, whether experimental or otherwise, at your request will be charged for at the rate specified in the contract. Clients must advise of any amendments, and additional work must be accompanied with an authorised order. All such variations (whether by way of addition, substitution or omission) to the existing contract only become binding upon our confirming unconditional acceptance of order or our commencing work in accordance with the authorised order without notifying you of our unconditional acceptance of that order. Once work has commenced, any subsequent alterations requested by the client to the whole or part thereof will be charged for additionally at the rate specified in the original contract or as subsequently agreed by us.
22. Quotations are based on the current cost of production (materials, working hours and wages) and are subject to amendment on or after acceptance to meet any recognised rise or fall in such costs.
23. Acceptance of Services by the client: Proofs/PDFs of all printing work will be submitted for clients’ approval and no responsibility will be accepted for any errors which are expressly or deemed accepted by the client. Acceptance is deemed where the client fails to notify us of any defects within 7 days after delivery by us of the proofs/PDFs. Where the Services are provided in electronic form then the same procedure applies.
24. Copyright: The copyright in all original work created and/or produced by us remains with us, unless otherwise agreed with you in writing, whether or not we have expressly asserted copyright ownership.
25. Ownership of, and risk in, materials: As between the parties, materials (including, but not limited to our name, logos, service marks and trademarks, rights in software, source code, electronic artwork and media, photographic media, physical drawings and any other creative work, in each case (where capable of registration in any part of the world) whether registered or not) other than those supplied by the client which are used or created by us in the provision of the Services (including goods in physical or digital format) remain our exclusive property. Materials supplied by a client shall remain the client’s’ exclusive property. While we will take reasonable care to verify the completeness of those materials supplied by the client, the client is solely responsible for ensuring the completeness and accuracy of materials supplied by the client and we shall have no liability arising from our failure to identify any errors or defects prior to incorporating or otherwise using them in the works carried out by us in the provision of the Services.
26. The client shall indemnify us from and against any loss or liability in respect of materials supplied to us by it (including, but not limited arising from any claim by a third party alleging infringement of intellectual property and a claim that the materials breach any applicable law or regulation).
27. The client will further indemnify us against any loss or liability we may incur as the result of any claim or proceedings brought against us based upon any advertising prepared for you by us and approved by you before publication; provided that your obligations to indemnify us shall not extend to any such loss, or part thereof, which is recovered by us under such policies of insurance that we may have, in our absolute discretion, put in place.
28. The client undertakes to inform us of any actual or potential third-party breach of our intellectual property rights in materials supplied by us.
29. Where a third party alleges that materials supplied by us infringe their intellectual property rights, the client shall, and has no authority to do anything other than to, inform us of the claim. If the client, whether by way of act or omission, purports to make any admission on our behalf in relation to any such claim f, then it shall indemnify us from and against any loss or liability resulting from such admission.
30. Risk in physical materials acquired by us on a client’s instructions or which are supplied by or at the direction of a client shall remain with the client and we accept no liability for any damage to, or loss of, such materials while they are stored on our premises. We will take every reasonable precaution to safeguard clients’ property entrusted to us for custody or control, but we do not accept any liability for loss, damage, destruction or unauthorised use of any such property, whether or not this results from our negligence. The client is responsible for insuring such materials at its own cost.
31. Force Majeure: We will not be regarded as in breach of our contract with you if our failure to perform in accordance with the contract terms is as a result of a circumstance beyond our reasonable control. Force majeure includes but is not limited to, accident, breakdown of equipment, fire, default of suppliers and subcontractors, compliance with any laws or regulations coming into force after commencement of the contract and our being unable to provide the Services except at increased prices due to any of the foregoing causes. If the force majeure continues for a period of 30 days or more both parties shall discuss in good faith ways in which to alleviate the situation (which will include the possibility of approaching a third party during the period of force majeure) or, if this is not possible, to terminate the contract, without either party sustaining any
financial liability other than your continuing to be liable to pay all outstanding fees and disbursements due to us up to the date of termination (including our costs in relation to contracts that cannot be cancelled or which cannot be cancelled without incurring an early termination penalty ).
32. Indemnity: Where a party is indemnifying another party against loss or liability under these Conditions, the indemnifying party shall indemnify the other from and against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses).
33. Notwithstanding to the preceding paragraph, we shall not be liable to the client for loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill or indirect or consequential loss, howsoever arising, in relation to our obligations to you under any contract entered into between both of us.
34. Third party rights: The Services are provided to, and solely for the use and benefit of the contracting client. Accordingly, no other person shall have any claim against us arising from the client knowingly permitting a third party to have the use or benefit of the Services or any materials resulting from the provision of the Services and the client shall indemnify us from and against any loss or liability resulting from any such permission.
35. A person who is not a party to the contract between us and the client shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
36. Dispute resolution: Any complaint by you in respect of the Services provided by us shall be made in writing (which includes email) and should be made within seven days of receipt of the relevant goods or services. Both parties shall use their best efforts in good faith to resolve the dispute, but if a resolution is not found within 60 days then you shall be at liberty to pursue your rights in law.
37. Governing law and jurisdiction: This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the
laws of England.
38. The parties irrevocably agree that, subject to Condition 36 (Dispute Resolution), the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
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