1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Client: the person, firm or company who purchases Professional Services and Products from the Company.
Company: DARWIN BRAND CONSULTANTS LIMITED
Contract: any contract between the Company and the Client for the sale and purchase of Professional Services and/or Products incorporating these conditions.
Professional Services and/or Products: any Professional Services agreed in the Contract to be provided to the Client by the Company (including any part or parts of them) and/or any Products agreed in the Contract to be supplied to the Client by the Company (including any part or parts of them).
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
2. Application of terms
2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Client’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Professional Services and/or Products shall have no effect unless expressly agreed in writing and signed by (Vincent or Suzanne Bissette) of the Company. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Professional Services by the Client from the Company shall be deemed to be an offer by the Client to purchase Professional Services and/or Products subject to these conditions.
2.5 No order placed by the Client shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company provides Professional Services and/or Products to the Client.
2.6 The Client shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Client. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The quantity and description of the Professional Services and/or Products shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Professional Services and/or Products described in them. They shall not form part of the Contract and this is not a sale by sample.
3.3 The Client may at any time receive a proof from the Company for any works undertaken in relation to Professional Services and/or Products which the Client has instructed. In relation to any proof the Company accepts no liability for any errors not identified by the Client.
4.1 Unless otherwise expressly agreed in writing by the Company, any dates and times specified by the Company for delivery of the Professional Services and/or Products are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates and times are so specified, delivery shall be within a reasonable time.
4.2 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Professional Services and/or Products (even if caused by the Company’s negligence), nor shall any delay entitle the Client to terminate or rescind the Contract unless such delay exceeds 180 days.
4.3 If for any reason the Client fails to accept any of the Professional Services and/or Products when they are ready to be provided, or the Company is unable to provide the Professional Services and/or Products on time because the Client has not provided appropriate materials, instructions, documents, licences or authorisations:
(a) Risk in the Professional Services and/or Products shall pass to the Client (including for loss or damage caused by the Company’s negligence); and
(b) the Professional Services and or Products shall be deemed to have been provided.
4.4 If the Client wishes to make any changes or variations to the Professional Services and/or Products, the Client is aware that this will affect the timescale during which the Company has to produce or deliver same Professional Services and/or Products.
4.5 The Company may provide the Professional Services and/or Products at different stages; each separate stage shall be invoiced and paid for in accordance with the provisions of the Contract.
4.6 Each stage shall be a separate Contract and no cancellation or termination of any one Contract relating to a separate stage shall entitle the Client to repudiate or cancel any other Contract or instalment.
4.7 The Client accepts that where they provide material to the Company which is subsequently found to be incomplete, unsuitable or requiring alteration then the Company shall be granted an appropriate extension to the delivery date for the Professional Goods and/or Services or the Company may decline the production altogether.
5.1 Any liability of the Company for not providing Professional Services and/or Products to the Client shall be limited to replacing same Professional Services and/or Products within a reasonable time or issuing a credit note for same services at the pro rata Contract rate against any invoice raised for same services.
6.1 The price for the Professional Services and/or Products shall be as quoted by the Company to the Client, and in any event shall be exclusive of any value added tax and all costs or charges in relation to carriage and insurance, delivery, variations to orders, preliminary work, sub-contracting, project management, copywriting, the hire or commission of photography, the printing of stationery or brochures, the production and installation of signage, vehicle graphics, and any other similar costs or charges incurred, etc, unless otherwise stated explicitly within the quotation, all of which amounts the Client shall pay in addition when it is due to pay for the Professional Services and/or Products.
6.2 Additional items. Any additional work/items requested, that are not specifically mentioned in your quotation will be charged as extra at our standard hourly rate. Please do not assume when requesting additional items that this has been included within your quotation. If you are unsure, please check before requesting such work. Where additional work is requested we will endeavour to provide a quotation for this before work commences, however, please note that this is not always possible and in this event all additional time spent will be charged at our standard hourly rate.
6.3 Project Management for production will be charged as extra at our standard hourly rate.
6.4 All quotations for design and artwork services include 1 set of client instructed alterations (per item), each additional
alteration requested thereafter will be charged at our standard hourly rate.
7. Payment Terms
7.1 Subject to condition 7.6, payment of the price for the Professional Services and/or Products is due in pounds sterling and payment will be due on a pro-forma basis unless a credit account as per clause 7.11, has been arranged in advance between the Client and the Company.
7.2 Time for payment shall be of the essence.
7.3 No payment shall be deemed to have been received until the Company has received cleared funds.
7.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
7.5 The Client shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Client.
7.6 The Client shall make all payments to Darwin Brand Consultants Limited, 3 Hillneuk Avenue, Bearsden, Glasgow, G61 3PY.
7.7 Final payment must be received within 7 days from the date of the invoice being issued to the Client. In cases of overdue accounts the Company will exercise their statutory rights under the late payment of Commercial Debts (Interest) Act 1998. Interest will therefore be charged at a rate of 8% above the Bank of England base rate per 14 day period and this will be added to the amount owed. The Company shall continue to charge interest as such for every 14 day period that payment is outstanding up until the date that full payment is received for the invoice. The Company also reserves the right to charge a debt recovery fee of £40 which will be charged to the Client in accordance with the European Directive 2000/35/EC, as well as any other additional costs, fees or charges the Company may incur in connection with enforcement or any amount owed by the Client to the Company but not limited to court fees and legal expenses. The Company has the right to replace, modify or remove any Professional Services and/or Products and revoke the Client’s licence of the work until full payment has been received by the Company. By revoking the Client’s licence of the work or removing any Professional Services and/or Products the Company does not remove the Client’s obligation to pay any outstanding monies owed to the Company.
7.8 If the Client has any queries as to the amount of the invoice this should be raised in writing within seven days of receipt of the original invoice, otherwise the account invoiced will be deemed to be agreed. The Client is not entitled to withhold payment or make any deductions from the invoiced amount by reason of any claim or alleged claim and all rights of set-off are excluded.
7.9 The Company reserves the right at its discretion to invoice a client in advance of up to 50% of the total fee and/or costs and/or charges and the Company will not be obliged to commence work on the Professional Services or Products until this invoice has been settled.
7.10 The Company reserves the right to consider any project inactive and bill for work completed after 4 weeks of client unresponsiveness via the contact information provided. Projects put on client hold for more than four weeks will be considered inactive and billed for all work completed to date.
7.11 Credit accounts will only be available to those clients who agree to our Terms and Conditions in full. Credit terms will be on a strict 30 day basis from date of invoice. Credit accounts will be agreed at the discretion of the Company, prior to any work commencing.
8.1 The Client accepts reasonable tolerances in respect of colour and acknowledges that a final printed product may differ in colour from that shown on any proof delivered on any media and for the avoidance of doubt any sample supplied shall not constitute a sale by sample.
8.2 The Client accepts that the Company can take no responsibility for Professional Services and/or Products provided by third parties either through the Company or otherwise including the hosting of the Client’s website, for example. Although the Company will endeavour to ensure that any time taken to host a Client’s website will be kept to a minimum. The Company also takes no responsibility for the functionality or maintenance of such website after works have been completed unless there is a maintenance contract in place between the Client and the Company. The Company agrees to correct any errors whether technical or typographical without any charge to the Client however the Company will still reserve the right to charge a reasonable fee for correction of errors for which the Company is not responsible including but not limited to, for example, any malicious modification of a website by a third party and typographical errors contained in materials supplied to the Company by the Client.
8.3 The Client accepts that any installation on the internet for any Professional Services and/or Products is limited to the uploading of all necessary files to the Host and testing of functionality. No registration of any website with search engines will be undertaken unless otherwise agreed between the Client and the Company.
8.4 The Client accepts that the Company is not committed to guarantee any listings on search engines nor does the Company guarantee who is listed or not and if listed the Company does not guarantee any placement or rank within the search engine.
9.1 If a Client wishes to cancel or suspend a contract with the Company the Company will charge for all works carried out up to the time of such cancellation or suspension and the Company will also charge for any materials or services specially delivered or ordered.
9.2 The Company has the right to terminate the contract with a client at any time if the Company believes that its professional reputation is jeopardised by its continued involvement with the Client and the Client’s project. For example, if the Client ceases to trade, commits a fraudulent offence or an act of bankruptcy. If the Client is a corporate body the Company reserves the right to terminate the contract if there has been an appointment of a liquidator, receiver or administrator or if the Client enters into an arrangement with its creditors.
10. Client’s property
10.1 The Client accepts that without the written arrangement with the Company all artwork, additional files, sketches, discs or any other materials maybe effaced or destroyed by the Company after the Company has used them in a project and if they are no longer needed.
10.2 The Company reserves the right to reject any materials such as but not limited to artwork, photographs, slides, discs, films, paper and similar documents supplied by the Client if in its opinion the Company finds same documents unsuitable for the production process as per the contract between the Client and the Company. Any costs incurred in altering, amending or substituting unsuitable material may be charged to the Client.
11. Limitation of liability
11.1 The company shall not accept any liability for the delay, loss or damage caused by any carriers so long as the Company can provide proof of dispatch.
12.1 The Company may assign the Contract or any part of it to any person, firm or company.
12.2 The Client shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
13. Force majeure
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Professional Services and/or Products ordered by the Client (without liability to the Client) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of  days, the Client shall be entitled to give notice in writing to the Company to terminate the Contract.
14.1 The Company shall not be required to reproduce in any form any material which in the opinion of the Company is or may be of an illegal defamatory or contentious nature. The Company shall be indemnified by the Client in respect of any claims, costs, expenses arising out of any such matter produced by the Company or the infringement of any industrial or intellectual property right. Without prejudice to other remedies the Company shall in respect of all outstanding debts due from its clients have a general lien on all goods and property in the Company’s possession (whether worked on or not) and shall be entitled on the expiration of fourteen days notice to dispose of such goods or property as the Company finds fit and to apply any proceeds towards such debts. In the event of any dispute that cannot be resolved by the individuals with responsibility for the contract thereupon the request of either party senior representatives of the Company and the Client shall meet to discuss the problem and try to reach an acceptable compromise. The parties will consider mediation as a method or resolving any dispute. The Client accepts that he or she will be solely responsible for matters concerning contractors and sub-contractors that it specifies or nominates and shall take reasonable steps to ensure that they are aware of and comply as appropriate with these conditions so that they cooperate fully with the Company.
14.2 The Client accepts that they will provide the Company free of charge with a reasonable number of samples of any work carried out in connection with the project.
14.3 The Company shall not be responsible for any failure of any materials or items stipulated by the Client to be used in relation to any works in the contract between the Client and the Company.
14.4 The Company accepts responsibility for the work of its sub-contractor unless they have been stipulated by the Client.
14.5 The Client accepts that the Company will make every endeavour to ensure accuracy when instructions or advice are given or received orally by the Company however the Company shall have no liability to a client for any misunderstanding or misrepresentation which may arise in relation thereto except in relation to fraudulent misrepresentations.
14.6 The Client accepts that the Company is to be provided with instructions in writing either by email, fax or letter and if verbal instructions are given these should be followed up in writing by email or fax.
14.7 If the Client wishes to make a claim based on defective works or a failure by the Company to correspond with any specification they shall notify the Company within seven days from the date of delivery of the Professional Services and/or Products. If delivery of same Professional Services and/or Products is not refused by the Client and the client does not notify the Company accordingly then the Client shall not be entitled to reject same works and the Company shall have no liability for such defect or failure. The Client accepts that he or she will be liable to pay the full cost of the works as if the works had been delivered in accordance with the contract between the Client and the Company.
14.8 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
14.9 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.10 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
14.11 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.12 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.13 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by Scottish law and the parties submit to the exclusive jurisdiction of the Scottish courts.
15.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Client by the Company; or
(b) (in the case of the communications to the Client) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Client set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Client.
15.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by email on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
15.3 Communications addressed to the Company shall be marked for the attention of Vincent or Suzanne Bissette.
15.4 Communications made verbally shall be followed up in writing or by email to the Company to its registered office or such address as shall be notified to the Client by the Company.
16. Intellectual Property
16.1 The Client confirms that they hold a full legal title to any copyright involved in any works to be carried out by the Company under the contract between the Client and the Company. This may involve any work involving any form of copying whether by way of drawings, digital files, photographs, films, magnetic tapes, prints or otherwise as undertaken. In the event of any uncertainty the Company reserves the right to contact potential owners for clarification for the works.
16.2 The copyright of the Clients selected designs originated by the Company will be transferred to the Client on full payment of the fees and costs owed to the Company unless otherwise agreed by the usage licence.
16.3 Copyright of designs that are not selected or used remain with the Company unless otherwise agreed and copyright and usage fees for photography and illustrations is subject to a separate agreement between the Client and the Company or the artist.
16.4 The Client accepts that until work is completed and paid for the copyright remains with the Company during which time the Client will be provided with the visuals in various format, e.g., PDF or printouts. The client may not use any design work without the written consent of the Company. The production of the Professional Services and/or Products is based on intellectual property rights and the Company will retain absolute copyright of these actionable in law for any breaches thereof.
16.5 When copyright passes to the Client it is expressly agreed between the parties that the Company will still maintain intellectual property over the work and will therefore be able to use it for promotional reasons for example, but not limited, on the Company’s website, in their portfolio or as an example to show potential clients examples of works and in promotional literature for the Company. The Company reserves the right to use their intellectual property in whichever way they choose.
16.6 The Client accepts that under no circumstances shall any work in an uncompleted fashion be used or published as completed work or otherwise without the express written consent of the Company.
16.7 The Client accepts that following completion of a project the Company may retain any artwork and materials as part of its own records but unless it shall have expressly agreed to do so as part brief it shall not be obliged to do so.
16.8 The Client accepts that unless they Company expressly agrees otherwise the Company shall not be under any obligation to make any search or enquiry with regard to third party rights such as trademarks, registered designs or market researches.
16.9 The ideas and concepts put forward by the Company as part of their services but which are either rejected by the Client or which do not form part of the final implemented work for any reason shall be the confidential know-how of the Company and the Client shall not use such ideas for any purpose and shall keep such confidential know-how secret and shall not disclose it to any third party until the same shall come into the public domain other than by reason of a breach of duty of confidentiality due to the Company or for a period of one year which ever is the longer.
16.10 The Company asserts its right to be identified as the author of any design work which has been created as a result of the commission and any publication of that work or reproduction thereof on any finished product shall be a clear and distinctive credit to the Company in a form and manner approved by the Company.
16.11 Any publicity given to the work produced by the Company as part of the services shall give the Company reasonable accreditation and the Company shall reserve the right to publicise the work carried out for any client unless otherwise agreed in writing.
16.12 If more than one design is chosen by the Client and this has not been approved for in the agreed brief for services an additional fee may be payable by the Client to the Company.
16.13 The Company will use all reasonable endeavours to secure the relevant intellectual property rights of its freelancers, contractors and sub-contractors.
16.14 The Client accepts that illustrators and photographers usually retain ownership of the original illustration or photograph 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.
16.15 The Company shall notify the Client of any third party materials that it intends to use in the products and the Client acknowledges and accepts that the third party products shall be supplied to the Client in accordance with the respective copyright licences terms.
17.1 Each party shall owe the other a duty to preserve the confidential information of the other (being information of a confidential nature not in the public domain and the disclosure or misuse of which would foreseeably damage the goodwill, business or reputation of the other).
17.2 In the event that the Client shall have cause to disclose to the Company specific commercially sensitive information they shall so inform the Company who will comply with the Client’s reasonable requirements in this regard.
17.3 The Client accepts that they will not contact or engage in services of or employ any person who was and remains an employee of the Company during such period except with the written consent of the Company while the Company is providing services and for a period of twelve months following the later of; (a) completion of the project in which the Company was engaged; or (b) completion of any other business contract between the Company and the Client.
17.4 The Client agrees and undertakes that if it (or any client, group, company or related person) acts in breach of the above clause or without the Company’s prior written consent then (without limitation to any other remedy available to the Company) the Client shall pay an introduction fee amounting to the amount paid to the employee for the last two years of his or her employment.
18. Change of Terms and Conditions
18.1 These Terms and Conditions may vary from time to time. The Client will be informed of any revisions as and when they are issued by the Company. last updated 21 April 2015.