Terms and Conditions
The Consultancy: Carter Wong Design Limited.
The Client: Any person, firm or company to whom the Consultancy provide their services.
The Commissioned Work: The entirety or any part of the design work.
These conditions shall supersede any other conditions appearing in any brochure or otherwise and shall apply to and be deemed to constitute part of all contracts made between the Consultancy and the Client. The Consultancy are not willing to contract otherwise than on these conditions and any printed or standard or other conditions which appear or are referred to on any documents of the client shall have no legal effect whatsoever. No variation or modification of these conditions will be effective unless confirmed in writing and signed by a director of the Consultancy.
2.1 Fees and costs are estimated on a phase by phase basis. The Consultancy retains the right to amend estimates for subsequent phases as the project progresses and the extent of the work in each phase becomes clear.
2.2 The Client and/or the Consultancy retains the right to terminate the project at the end of each phase. However if the Client terminates the project the Consultancy retains the right to re-estimate and invoice the completed stages taking account of the termination.
2.3 These Terms and Conditions of Contract shall be deemed to have been accepted by the client for this and all subsequent phases of work following receipt of verbal or written approval of phase 1 of the Commissioned Work.
2.4 The fee specified is the Consultancy’s fee for the scope of work assessed on the basis of the time estimated to be spent by the Consultancy in carrying out the Commissioned Work on the basis of information available at the time. That fee may, in the Consultancy’s absolute discretion, be increased at the Consultancy’s standard rates in the event of changes to specification, rushed delivery, client corrections or unforeseen increases in charges from outside suppliers. VAT will be added to all invoices as appropriate.
2.5 The Consultancy shall be reimbursed for all reasonable out of pocket expenses incurred in relation to the Commissioned Work or as a result of any changes thereto but not arising though any default on the part of the Consultancy. Such expenses are not included in our estimated fees.
3. OUTSIDE SERVICES
3.1 Costs and charges incurred by the consultancy on the project for such items as photography, illustration, typesetting, the provision of mock-ups, re-touching, models, moulds, prints and any other outside services shall be charged separately unless stated to be included in the estimated fee. The Consultancy shall be entitled to charge such reasonable commission at such rate as the Consultancy shall in its absolute discretion consider appropriate.
3.2 Any requirement for ancillary services beyond those estimated for will be notified and wherever possible agreement obtained prior to the expenditure.
4.1 Unless waived by the Consultancy invoices for 25% of the project fees will be invoiced at the commencement of the Commissioned Work. The balance due for all fees and costs of each stage will be invoiced on completion of that
stage in full.
4.2 If the Commissioned Work is deemed by the Consultancy to be continuing work, invoices will be submitted at the end of each calender month or at set stages as agreed in advance for work carried out and costs incurred during that period.
Payment is due within 30 days from the date of each invoice. Thereafter the Consultancy shall be entitled to charge interest at 5% per annum above the base rate of the Royal Bank of Scotland plc from time to time on any amount outstanding. The Consultancy may also suspend any further work on the project and/or terminate the contract if payment is not received in full by the due date.
6. COMPLETION DATE
Any date specified for completion of the Commissioned Work is an estimate only. The Consultancy shall endeavour to meet such date but shall not be responsible for any loss or damage if it fails to do so due to circumstances beyond the control of the Consultancy.
The Client shall be responsible for checking and approval of all stages of production of the Commissioned Work and for ensuring that the designs are fit and suitable for the purpose intended and the consultancy shall not be held liable for any errors or omissions in artwork, illustrations, photography, proofs, etc. which have been accepted by the Client.
8. SAMPLES OF WORK
The Client will provide the Consultancy with pristine samples of each finished article, design or other creative work carried out in relation to the Commissioned Work free of charge and in reasonable numbers.
9. RISK AND PROPERTY
9.1 This clause applies to all materials, including but not limited to all artwork, photographs, drawings, models, mock-ups,
prints, moulds and other like matter and all copies, supplied by the Consultancy to the Client.
9.2 Risk in all materials passes to the Client on delivery either to the Client or to an independent carrier.
9.3 All materials shall remain the property of the Consultancy until the Client has paid all sums due under the contract in full. Until such payment is made the Client shall not be entitled to use any such materials. Furthermore the Consultancy may repossess all or any such materials and all copies and for this purpose the Consultancy shall be entitled to enter the premises of the Client during normal business hours.
9.4 All materials which are not incorporated in the final design selected by the Client remain the Consultancy’s property whether or not in the Client’s possession and the Consultancy remains free to repossess the same and to exploit the same in any way without further reference to the Client.
10.1 Although all work undertaken is done to the best of the Consultancy’s ability the Consultancy accepts no responsibility for any loss or damage to property or persons arising in any manner at all, either in relation to the services to be rendered and/or goods supplied to the client, or in relation to any defect in products manufactured using designs supplied under the contract other than liability for death or personal injury caused by the negligence of the Consultancy.
10.2 If despite clause 10.1 the Consultancy is required to compensate the client for any such loss or damage, then its liability is limited to the amount of the estimated fees for the Commissioned Work.
10.3 The Consultancy accepts no responsibility for any damage to or loss of any property of the Client supplied by the Client in relation to the Commissioned Work and whilst in the possession of or in transition to or from the Consultancy or being handled by the Consultancy outside its premises. The Consultancy undertakes to use all reasonable care in relation to any such property in order to seek to prevent such loss or damage.
10.4 The Client shall indemnify the Consultancy against all losses, damage or liabilities of any kind in respect of loss of or damage to property, death or personal injury that may arise or occur directly or indirectly as a result of a defect in any product manufactured using designs supplied by the Client in relation to the Commissioned Work.
11.1 The Consultancy will not without the Client’s authority disclose to any person any confidential information relating to the operation of the client’s business which may be acquired by the Consultancy in the course of the project except as may in the opinion of the Consultancy be necessary in connection with the performance of the contract. TheConsultancy shall be entitled to sub-contract any part of the Commissioned Work and shall endeavour to ensure that sub-contractors are bound under the same conditions of confidentiality.
11.2 All confidential information relating to the Commissioned Work and communicated or provided by the Consultancy to the Client shall at all times be kept confidential by the Client.
12. USE OF WORK
12.1 The Commissioned Work including any amendments shall not be used for any purpose other than that for which it was commissioned.
12.2 Proofs of all items or work in rough or uncompleted form using designs created by the Consultancy must not in any circumstances be used or published without the prior written approval of the Consultancy.
12.3 No modifications or alterations may be made to any part of the Commissioned Work at any time without prior written approval from the Consultancy. Such modifications or alterations may only be made under the supervision of the Consultancy and must be paid for at a rate agreed with the Consultancy in advance.
12.4 The Consultancy must be compensated for any modifications, development or alterations made to the Commissioned Work by any person other than the Consultancy after the cancellation or termination of this contract.
12.5 The Consultancy shall at all times be entitled to use for the purposes of the promotion or furtherance of its business any of the Commissioned Work or any description or illustration of the Commissioned Work, even in the event that the intellectual property rights in the work have been assigned to the Client.
12.6 Original illustration and photographs normally remain the property of the illustrator or photographer unless specifically purchased. Charges are for one time use only unless otherwise agreed.
13. DESIGN CREDIT
13.1 The Consultancy asserts its right to be identified as the author of any design work created as a result of carrying out the Commissioned Work in accordance with the Design and Patents Act 1988 section 78(2).
13.2 The Consultancy’s name or trading style shall not be used in any way unless asserted as in 13.1 above or approved in advance in writing by the consultancy.
14. INTELLECTUAL PROPERTY
14.1 Copyright, design rights and any other intellectual property rights in all work created by the Consultancy and coming into existence in relation to the Commissioned Work shall vest in and belong to the Consultancy. All such intellectual property rights shall continue to so belong on cancellation or termination of the contract unless expressly assigned or licensed to the Client in writing.
14.2 Once the final stage of the project has been completed and all the fees, costs and expenses as invoiced have been paid in full, the Consultancy shall assign to the Client copyright and any other relevant intellectual property rights in the materials embodying the final design selected by the Client.
14.3 Assignment will apply to the country from which the project was commissioned only unless any other copyright territory is agreed in writing with the Client. Other copyright territory requirements arising at a later date will be subject to negotiation between the parties.
14.4 The Consultancy’s obligation to assign copyright shall be conditional on the Client having complied with all its contractual obligations.
15. DESIGN REGISTRATION
If the copyright or other intellectual property rights subsisting in any part of the Commissioned Work is licensed or assigned to the Client the Consultancy shall, if so reasonably requested and at the expense of the Client, assist in the any application for the registration of such rights.
The Consultancy will not knowingly infringe the rights of third parties in carrying out the Commissioned Work. The Consultancy will not be responsible for any loss or damage caused by any such infringement of which the Consultancy was unaware. The Client shall indemnify the Consultancy against all liability arising out of any infringement of third party rights as a result of the incorporation into the Commissioned Work of any material at the request of the Client.
Unless a rejection fee has been agreed in advance, there is no right to reject the Commissioned Work on the basis of style or composition.
18.1 If the Commissioned Work is to be carried out in stages, the Client and/or the Consultancy may give the other party written notice to cancel the contract or postpone any part of the Commissioned Work after completion of any stage. The notice will be effective when received by the recipient party. The Client shall be liable to pay the Consultancy’s fees, costs and expenses for all completed stages and to pay for any work commenced on subsequent stages prior to cancellation or postponement at the Consultancy’s standard rates together with all expenses and loses incurred by the Consultancy as a direct result of such cancellation or postponement.
18.2 If the Commissioned Work is postponed and subsequently resumed without substantial alteration within a period of one year from the date of receipt of the notice of postponement, any fees paid shall rank as payments on account towards the total final fee payable on completion of the Commissioned Work. Where the period of one year has expired the resumed Commissioned Work shall be deemed to constitute a separate contract for which fees must be renegotiated.
19.1 In addition to the right of either party to cancel or postpone the Commissioned Work under clause 18 the Consultancy may terminate the contract if the Client commits any breach of its obligation under the contract, or if the Client enters into or threatens to enter into bankruptcy or liquidation or has a receiver appointed over all or any part of its assets, or in any other way becomes or threatens to become insolvent.
19.2 On the termination of the Commissioned Work for whatever reason the Client shall return to the Consultancy all original artwork or other creative work of which the Consultancy owns the copyright and which is in the possession or power of the Client and any other confidential material supplied to the Client by the Consultancy.
The contract for the Commissioned Work shall be personal to the parties and shall not be assigned by either party to any other party.
The contract shall be governed by the laws of England and Wales and the client agrees to submit to the jurisdiction of the English courts.