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Terms and conditions of business

1. Definitions

In these Terms and Conditions which include the Schedules hereto, the following words have the following meanings:
"Agreement” - the agreement between us upon these Terms and Conditions;
"our Lead Consultant” - our Lead Consultant as specified in paragraph 5;
"Work" - the job specification as set out in the Project Acceptance Form attached;
"Services" - our obligations under the Agreement including, without limitation, advice, assistance, reporting and documentation prepared and delivered by suitably qualified personnel pursuant to the aims and objectives of the Work;
"your Contract Manager" - your Contract Manager as specified in paragraph 5.

2. Agreement For Services

We will commence providing the Services on «Project_start_date» and will continue providing the Services until the Work referred to in the Project Acceptance Form is complete or termination of the Agreement as provided in paragraph 13.

We will carry out the Work in accordance with the Project Acceptance Form.

In the event of any conflict, the terms of the Agreement shall prevail.

We will deliver to you each stage of the Work as referred to in the Project Acceptance Form attached.

Our Lead Consultant and your Contract Manager will use their reasonable endeavours to make the Work fulfil the aims and objectives and comply with the specifications contained in the Project Acceptance Form attached.

3. Financial Arrangements

In consideration for providing the services, you shall make payments to us in accordance with the Payment Schedule.

You agree to comply with the provisions of the Payment Schedule. All sums referred to in the Project Acceptance Form are exclusive of any Value Added Tax that may be payable unless otherwise stated.

All sums referred to in the Payment Schedule are exclusive of expenses incurred in the delivery of the Work and all materials, unless otherwise agreed in the Payment Schedule. Expenses will be paid by you at cost.

We have a minimum invoice value of one hour, primarily to cover administration fees.

We do not typically operate a rush charge. As all projects are important, we make every effort to accommodate any deadline. However, we reserve the right to charge a premium should the project require any member of our team to prioritise your work or complete it during unsociable hours.

We reserve the right to make a reasonable increase to our fees annually on or around 1st January. Should we do so, we will give you a minimum of one month's written notice.

4. Reporting Arrangements

We will keep records of all tasks carried out by us in performing the services and for the duration of the Agreement and for at least 2 years after termination thereof we will maintain all documents and records of whatever nature used, received or produced by us in relation to the Services and will allow you at your request and unrestricted access to the same during normal office hours and upon 2 days' notice for the purpose of inspecting the same or taking copies thereof or for any other reason.

4.2. Meetings will be held between your Contract Manager and our Lead Consultant to discuss the progress of the Work from time to time as agreed between your Contract Manager and our Lead Consultant.

You will be entitled at your expense to request and secure the attendance at such meetings of such other members of your or our staff and such third parties as you consider fit for the purpose of reviewing the Work.

We agree to comply with any reasonable requests made by your Contract Manager at such meetings relating to the provision of the Services and any documents referred to in the Project Acceptance Form.

You will provide free access to your personnel for the purpose of the Work during normal office hours, providing we have secured their commitment in advance.

5. Personnel

For the purpose of the Agreement, your Contract Manager will be «Contact_Name» or such other person as shall be appointed in their place and notified to us in writing by you. For the duration of the Agreement, all communications from us will be addressed to your Contract Manager, unless otherwise agreed.

For the purpose of the Agreement, our Lead Consultant will be «Owner» or such other person as shall be appointed in their place and notified to you in writing by us. For the duration of the Agreement, all communications from you will be addressed to our Lead Consultant.

6. Non-Exclusivity

You acknowledge and accept that we may be engaged in providing services for other clients, some of which may be similar to the Services. This fact notwithstanding, we endeavour to ensure that the Services are undertaken within timescales expressly agreed and to use our best endeavours to promote your interests.

7. Future Work

We will undertake to act in your best interests, and not solicit further work, unless specifically agreed with, requested or proposed by your Contract Manager. In the event of other tasks not included in the Work being requested or proposed, a further Schedule to this contract will be drawn up between you and us.

8. Confidentiality

We understand that in the provision of the Services, certain confidential information relating to your activities and financial status may come within our knowledge and certain confidential documents may come into our possession. We hereby undertake not to use such information or documents for any purpose not authorised by you in advance nor to divulge any such information to any persons or businesses for any purpose whatever.

We agree not to disclose all or any part of any of the Work referred to in the Project Acceptance Form to any third party without your prior written consent.

9. Copyright

Copyright and all other intellectual property rights relating to any works, designs, records, recordings, programmes, processes, documents, information, materials and all other items of whatever nature conceived, originated, developed or made by us in carrying out the Work shall vest in us unless otherwise agreed between us and you in writing, provided that we hereby grant you a perpetual royalty free license to use, copy and modify such items.

By supplying text, images and other data to us for inclusion in your work, you guarantee that you hold the appropriate copyright and/or trademark permissions and you (or the owner of the copyright or trademark) give us permission to use it freely in the commission of the design. You take responsibility for seeking necessary permissions and will cover us legally for any action that may result in a failure to obtain the necessary permissions. If you provide images for your project, we will assume that you have secured the relevant licenses and you must provide us with explicit instruction if any of the images need to be credited.

10. Liability and Insurance

Neither you nor we will be liable to the other for any breach of contract, loss of profit or consequential or indirect loss or damage suffered by the other. Liability to each other for any loss of profit or consequential or indirect loss or damage suffered by the other will be limited to the maximum value of the work, as defined in the Project Acceptance Form.

In carrying out the Services, we will act as principal and not as your agent, and you shall not be responsible for any act or omission or negligent misstatement on our part.

We covenant not to hold ourselves out to any third party as your servant, agent or partner.

We agree that the Agreement will not constitute a partnership between the parties for any purpose.

We will during the currency of the Agreement maintain in full force and effect public liability insurance and professional indemnity insurance together with such other insurance cover as is normal for a business of a size and type similar to ours. Such insurance is to be effected with an insurer of repute in such sum and for such risks as we may from time to time reasonably require. We will furnish to you at your request a copy of the certificates and policies of such insurances together with receipts of the last premiums in respect thereof.

We cannot guarantee that our work will be error-free and so we cannot be liable to you or any third-party for damages, including lost profits, lost savings or other incidental, consequential or special damages, even if you've advised us of them.

We cannot be responsible for a failure to complete any contract/brief due to circumstances beyond our control, including: serious illness, loss of power supply, machine breakdown, loss of materials, fire, storm, flood, act of god, war, civil disturbance or terrorism.

If you entrust us with your property or materials and they are stolen, damaged or destroyed then we will cover the cost of replacement of the article, but we cannot be liable for reproducing work (such as reshooting or reprinting something) or for any subsequent loss or income or reputation. If you have concerns about these areas then it is best that you insure yourselves against such losses.

We are not able to give warranties of any kind, express or implied, for any products or services. Although we make all reasonable efforts to ensure quality and appropriateness of materials, we accept no responsibility for the performance or quality of materials or any consequential loss arising from their failure.

Our liability extends only for the duration of the contract/brief. Typically this means that we will support the website up to the date of it going live. Any necessary amendments made subsequently are usually charged at our standard hourly rate.

11. Assignment and Sub-Contracting

We may for the duration of the Agreement with your prior consent:

assign the Agreement or any part of it to any other person; or

use the services of any Third Party or other sub-contractor whether for information or for the supply of goods or services in relation to the Work; or

where any part of the Agreement is to be sub-contracted, we will enter into a written agreement with the relevant sub-contractor, which will impose on that sub-contractor obligations equivalent to our obligations hereunder.

12. Processing clients’ data

With respect to the party's rights and obligations under this Agreement, the parties agree that you are the Data Controller and that we (Scaramanga Agency) are the Data Processor.

We shall process the Personal Data only in accordance with your instructions (which may be specific instructions or instructions of a general nature as set out in this Agreement or as otherwise notified by you to us during the Term);

We shall process the Personal Data only to the extent, and in such manner, as is necessary for the provision of the Services or as is required by Law or any Regulatory Body;

We shall implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful Processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected;

We shall take reasonable steps to ensure the reliability of any of our personnel who have access to the Personal Data;

We shall obtain prior written consent from you in order to transfer the Personal Data to any sub-contractors or affiliates for the provision of the Services;

We shall ensure that all our personnel required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations set out in this clause;

We shall ensure that none of our personnel publish, disclose or divulge any of the Personal Data to any third party unless directed in writing to do so by you;

Notify you (within [five] working days) if we receive:

a request from a Data Subject to have access to that person's Personal Data; or

a complaint or request relating to your obligations under the Data Protection Legislation;

We shall provide you with full cooperation and assistance in relation to any complaint or request made, including by:

providing you with full details of the complaint or request;

complying with a data access request within the relevant timescales set out in the Data Protection Legislation and in accordance with your instructions;

providing you with any Personal Data held in relation to a Data Subject (within the timescales required by you); and

providing you with any information requested by you;

We shall permit you or your representative (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit, in accordance with the Audit clause, our data processing activities (and/or those of our agents, subsidiaries and sub-contractors) and comply with all reasonable requests or directions by you to enable you to verify and/or procure that we are in full compliance with our obligations under this Agreement;

We shall provide a written description of the technical and organisational methods employed by us for processing Personal Data (within the timescales required by you); and

We shall not process Personal Data outside the European Economic Area without your prior written consent and, where you consent to a transfer, to comply with: the obligations of a Data Controller under the Eighth Data Protection Principle set out in Schedule 1 of the Data Protection Act 1998 by providing an adequate level of protection to any Personal Data that is transferred; and

any reasonable instructions notified to us by you.

We shall comply at all times with the Data Protection Legislation and shall not perform our obligations under this Agreement in such a way as to cause you to breach any of your applicable obligations under the Data Protection Legislation.

13. Termination

At any time you or us shall be entitled to terminate the Agreement by giving «Notice_period» notice in writing by the first day of the month.

At any time prior to completion of the Work you or us shall be entitled by giving 30 days’ notice in writing to terminate the Agreement, following :

any breach by you or us of any of the terms of the Agreement which if capable of remedy is not remedied within 30 days of written notice of such breach from you or us; or if you or us become insolvent or if in your or our reasonable opinion you or we appear to be about to become insolvent as defined in clause 13 or unable to complete the agreement.

if we engage in any conduct prejudicial to you.

Upon termination of the Agreement for whatever reason, at your request we will deliver up to you any documents or records or other items belonging to you which are in our possession or control, pending payment of any outstanding amounts.

As a private company we are not governed by the Freedom of Information Act, but many of our clients are. If it is possible that our communications might be governed by the Act. please inform us.

14. Bankruptcy Or Receivership Orders

You or we will be deemed to be insolvent in any of the following events:

if you or us cannot pay our debts;

if your or our liabilities exceed our assets;

if being a company you or we go into liquidation or a petition is presented to wind up or being an individual become bankrupt or being a partnership one or more of the partners becomes bankrupt;

if a receiver is appointed over the whole or any part of your or our assets

The relevant party will notify the other in writing immediately upon becoming insolvent or if any other event arises that may affect the ability to complete the Agreement.

15. Corrupt Gifts Or Payments

Your attention is drawn to the provisions of the Prevention of Corruption Acts 1889 to 1916 and the Bribery Act 2010. You and we agree not to:

solicit, receive or give any advantage on account of any member, officer or employee of yours or ours doing or not doing anything in respect of the Agreement; or

give any consideration to any agent or employee of yours or ours as an inducement for doing or not doing any act in relation to your or our affairs or for showing or not showing favour or disfavour to any person in relation to your or our affairs; or

knowingly give to any agent or employee of yours or ours any document in respect of the Agreement which contains any statement which is defective in a material particular and intended to mislead you or us.

16. Entire Agreement

The Agreement contains the entire agreement between you and us and supersedes any prior agreements relating to its subject matter.

17. Amendment

The Agreement shall not be amended except in writing signed by your and our duly authorised representatives.

18. English Law

The validity, construction and performance of the Agreement shall be governed by English Law, and any dispute concerning the same shall be subject to the jurisdiction of the English Courts to which the parties irrevocably submit.

19. Headings

The headings contained in the Agreement are for ease of reference only and do not affect its construction.

20. Prohibited Activities

We agree not to use any funds made available to us by you for the purpose of supporting any organisation or activity that is likely to bring you into disrepute.

We will not during the life of the Agreement and for a period of 1 year after termination thereof seek to employ any individual employed during the course of the Agreement and in connection with the Agreement by you.

You will not during the life of the Agreement and for a period of 1 year after termination thereof seek to employ any individual employed during the course of the Agreement and in connection with the Agreement by us.

21. Notices

Any notice required to be served under the Agreement shall be in writing and sent by post or delivered by hand to us, Scaramanga Agency Ltd, 11th Floor, One Croydon, 12-16 Addiscombe Road, Croydon CR0 0XT, UK (registered address) or to you «Account_Name» at «Account_Name.Billing_Building_Name», «Account_Name.Billing_Street», «Account_Name.Billing_Town», «Account_Name.Billing_City» «Account_Name.Billing_Code» «Account_Name.Billing_Country» (registered and operating address) or at such other address as may be notified in writing by the relevant party specifically for this purpose.

22. Equal Opportunities

Unless any case falls within an exception to the Sex Discrimination Act 1975 or the Race Relations Act 1976, both parties agree to use all reasonable endeavours to ensure equality of opportunity in respect of the Services. We will assist you to investigate any allegations of discrimination made against us or you or our sub-contractors and take appropriate action.

23. Browser testing and hosting

Browser testing is ensuring a person's experience of a design is appropriate to the capabilities of a browser or device. Our aim is to ensure we offer an appropriate experience for as many users as possible. We test our work in current versions of major desktop browsers including those made by Apple (Safari), Google (Chrome), Microsoft (Edge), Mozilla Firefox and Opera. We test mobile sites in the latest version of iOS: Safari and Google Chrome and Android: Google Chrome. We won't test in other browser unless you specify otherwise. If you do need an enhanced design for an older browser, then please talk to us about this at the beginning of a project so that we can provide a separate estimate for this work.

We do not offer support for website hosting, email or other services relating to hosting. If you require hosting, we can set up an account for you at one of our preferred hosting providers. If we purchase a hosting package on your behalf then we will register it in your name so that you have ongoing control of your website's hosting and you can pay for the package to be renewed. Please note that renewal notices will then be sent to your chosen email address – if you miss or ignore these notices then the site will be removed (and all of the data may be lost). On rare occasions, clients require us to buy web hosting on their behalf. If so, we will try to contact and notify you in plenty of time before the renewal date. If we are unable to reach you, we reserve the right to choose whether to renew the hosting (at the cost price plus an additional fee equivalent to one hour of studio time) and pass on that charge, or to let the hosting lapse.

24. Trademark research

When creating a logotype or identity we do not carry out any trademark research as this is specialist work often undertaken by solicitors who specialise in this area. We never set out to replicate another company's identity, however, it is possible for a design to inadvertently arrive at a similar place as another logo. As this research does not form part of the service we offer it is not included in any estimate or proposal we provide, however, we do encourage our clients to consider and undertake this due diligence before deploying their new identity in the public realm. We cannot be held responsible for any such copyright infringement.

25. Design credits

We like to put an unobtrusive credit on every website we create. If you think this is inappropriate then please discuss this with us.

If you use our work in some other context then we would like you to credit us so that people know who designed/ created it. Please credit us as Scaramanga or ask us to supply a logo. We reserve the right, with your permission, to display and link to your project as part of our portfolio and to write about it on websites, in magazine articles and in books.

26. Payment Schedule

Retainer projects - invoicing by us will be monthly in advance, or following an agreed invoicing schedule as identified in our estimate. Costs quoted are exclusive of VAT which will be added at the prevailing rate.

Website projects - invoicing by us will be in 4 equal instalments each of 25% of the project fee, invoiced on months 1, 2 3 and 4, or following an agreed invoicing schedule as identified in our estimate. Costs quoted are exclusive of VAT which will be added at the prevailing rate.

Expenses incurred will be invoiced at the end of the month in which they were incurred. VAT will be added at the prevailing rate.

Payment to us will be made within 14 days of receipt by you of our invoice.

Any cancellations will be shown separately on our invoice. Cancellations will be considered as extra to the Work defined in the Project Acceptance Form. Cancellation payments will be agreed in writing between your Contract Manager and our Lead Consultant prior to your invoice being submitted to you.

Each invoice shall be marked for the attention of your Contract Manager.

For the duration of the Agreement and for at least three years after termination thereof we will maintain full accounting records in relation to the Work identifying all income and expenditure relating to the Work separately from any other income and expenditure of ours and will allow you or any Governmental Authority to inspect the same during normal offi