Fresh Design and Marketing Ltd (Herein after known as ‘FreshBritain’)
FreshBritain – Terms & Conditions / Terms of Business
1.1 Definitions. In these Terms of Business the following definitions apply.
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
FreshBritain: Fresh Design and Marketing Limited, a company registered in England and Wales with company number 3740847 whose trading address is Suite 2, Farncombe House, Farncombe Estate, Broadway, Worcestershire WR12 7LJ.
Client: the person or firm identified in the Proposal.
Client Material: all Documents, information and materials provided by the Client relating to the services to be included in the Deliverables.
Commencement Date: has the meaning set out in clause 2.2
Contract: the contract between FreshBritain and the Client for the supply of Services as set out in the Proposal and in accordance with these Terms of Business.
Deliverables: all Documents, products and materials developed by FreshBritain or its agents, subcontractors, consultants, employees and Suppliers in relation to the Services including the deliverables set out in the Proposal.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or recording embodying information in any form.
Force Majeure Event: has the meaning given to it in clause 12.1(a).
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights or forms of protection in any part of the world.
Proposal: the proposal documents signed by the Client specifying the Deliverables and the Services to be provided under these Terms of Business.
Services: the brand consultancy, design and/or related services to be provided by FreshBritain as set out in the Proposal, including the provision of the Deliverables.
Suppliers: means by any and all third parties appointed and required by FreshBritain to assist the performance of the services.
Terms of Business: these terms of business as amended from time to time in accordance with clause 12.8
Third Party Materials: means all Documents, products and materials including computer programs, data, reports and specifications to be incorporated in or used in conjunction with the Deliverables that are owned by third parties.
1.2 Construction. In these Terms of Business, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
2. Basis of Contract
2.1 The Proposal constitutes an offer by FreshBritain to provide the services in accordance with these Terms of Business. Any quotation given by FreshBritain shall not constitute an offer.
2.2 The Proposal shall only be deemed to be accepted when the Client signs the Proposal and the Terms of Business at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of FreshBritain which is not set out in the Contract.
2.4 These Terms of Business apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Supply of Services
3.1 FreshBritain shall provide the Services to the Client from the date specified in the Proposal and the Services supplied under the Contract shall continue to be supplied until the project is completed in accordance with the timeframe set out in the proposal.
3.2 FreshBritain warrants to the Client that the Services will be provided using reasonable care and skill.
3.3 FreshBritain shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Client, in accordance with the proposal in all material respects and will provide the client with regular updates relating to the status of the Deliverables. The client acknowledges and accepts that FreshBritain may appoint suppliers to assist in the performance of the Services. The Client shall be permitted to recommend Suppliers to FreshBritain but FreshBritain shall decide in its sole discretion which suppliers to appoint. FreshBritain shall incur no liability in respect of any act or omission of the supplier.
3.4 FreshBritain shall use reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services. FreshBritain shall not be liable for any failure or delay in performance of any obligations under the contract that is caused by a Force Majeure Event.
3.5 Upon delivery of the Deliverables (or any part of the Deliverables) as set out in the proposal, the client shall have a period of 14 days from the delivery (Acceptance Period) to notify FreshBritain in writing if it requires any amendment to the Deliverables (or any part of the Deliverables). Upon receipt of such notice, FreshBritain shall use reasonable endeavours to make the amendments requested. Upon delivery of the amended Deliverables (or any amended part of the Deliverables), the Client shall have a further 14 days from delivery to notify FreshBritain in writing if it requires further amendment. This process shall be repeated until the Client confirms they have accepted the Deliverables (or any part of the Deliverables). FreshBritain shall be entitled to charge the Client for time spent for making such amendments. If FreshBritain does not receive notice in writing from the client during the Acceptance Period, the Client shall be deemed to have accepted the Deliverables (or any part of the Deliverables) which have been delivered in the Proposal.
3.6 FreshBritain shall have the right to amend the Proposal or make any changes to the Services which are necessary to comply with any applicable statutory or regulatory requirements or law which do not materially affect the nature or quality of the services, and FreshBritain shall notify the Client in any such event.
4. Client’s Obligations
4.1 The Client Shall:
(a) ensure that the terms of the Proposal are complete and accurate;
(b) co-operate with FreshBritain in all matters relating to the Services and where requested by FreshBritain to provide feedback or approval, it shall do so within the timeframe specified in the Proposal; and
(c) provide FreshBritain, its employees, agents, consultants, subcontractors and Suppliers with such information and Client Materials as FreshBritain may reasonably require to supply the Services, and ensure that such information is accurate in all material respects.
4.2 If FreshBritain’s performance of any of its obligations in respect of the services is prevented or delayed by any act or omission by the Client or failure by the client to perform any relevant obligations (Client Default):
(a) FreshBritain shall without limiting its other rights or remedies have the right to suspend performance of the services until the client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays FreshBritain’s performance of any of its obligations;
(b) FreshBritain shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from FreshBritain’s failure or delay to perform any of its obligations set out in this clause 4.2; and
(c) the Client shall reimburse FreshBritain on written demand for any costs or losses sustained or incurred by FreshBritain arising directly or indirectly from the Client Default.
5. Change Control
5.1 If the Client wishes to change the scope or execution of the Services, it shall submit details of the requested change to FreshBritain in writing.
5.2 FreshBritain shall, within reasonable time, provide a written estimate to the Client of the likely time required to implement the change and any necessary variations to FreshBritain’s charges arising from the change.
5.3 If the Client wishes FreshBritain to proceed with the change, FreshBritain has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services and any other relevant terms of the Contract to take account of the change and this Contract has been varied in accordance with clause 12.8.
5.4 Notwithstanding clause 5.3, FreshBritain may, from time to time and without notice, change the Services in order to comply with any applicable statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. FreshBritain may, from time to time change the Services, provided that such changes do not materially affect the nature of or quality of the Services.
6. Charges and Payment
6.1 In consideration of the provision of the Services by FreshBritain, the Client shall pay the charges as set out in the Proposal and payment shall be made in accordance with any payment schedule as set out in the Proposal.
6.2 FreshBritain shall be entitled to charge the Client for any expenses reasonably incurred in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, costs of materials, administration costs, printing costs and for the cost of Suppliers and FreshBritain shall notify the Client as soon as reasonably practical.
6.3 FreshBritain reserves the right to:
(a) increase the price of the Services, by giving notice to the Client, to reflect any increase in the cost of the services to FreshBritain that is due to:
(i) any factor beyond the control of FreshBritain (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Client to amend the Deliverables (or any part of the Deliverables) in accordance with clause 3.5;
(iii) any request by the Client to change the delivery date(s), or the scope of the Services in accordance with 5.2; or
(iv) any delay caused by any instructions of the Client in respect of the Services or failure of the Client to give FreshBritain adequate or accurate information or instructions in respect of the Services.
6.4 In respect of the services, FreshBritain shall invoice the Client on or at any time after the Contract comes into existence. Where FreshBritain has appointed Suppliers to assist in the performance of the Services, the Client agrees to make available any deposit or pre-payment invoiced by FreshBritain in respect of the Supplier’s costs so that the provision of the Services is not delayed.
6.5 The Client shall pay each invoice submitted by FreshBritain within the period stated on the invoice and in full and in cleared funds to a bank account nominated in writing by FreshBritain, and time for payment shall be the essence of the Contract.
6.6 All amounts payable by the Client under the Contract are exclusive or amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the contract by FreshBritain to the Client, the Client shall, on receipt of a valid VAT invoice from FreshBritain, pay to FreshBritain such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
6.7 Without limiting any other right or remedy of FreshBritain, if the Client fails to make any payment due to FreshBritain under the Contract by the due date for payment (Due Date):
(a) the whole amount due under the Contract or the outstanding balance shall immediately become due and payable by the Client;
(b) FreshBritain may suspend all Services until payment has been made in full;
(c) FreshBritain shall have the right to charge interest on the overdue amount at the rate of 8 per cent per annum above the then current Barclays Bank plc’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly
6.8 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against FreshBritain in order to justify withholding payment of any such amount in whole or in part. FreshBritain may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by FreshBritain to the Client.
6.9 All sums payable to FreshBritain under the Contract shall become due immediately on its termination, despite any other provision.
7. Intellectual Property Rights
7.1 Unless otherwise stated in the Proposal, all intellectual Property Rights in or arising out of or in connection with the Services shall be dealt with as set out in this clause 7.
7.2 The Client acknowledges and accepts that all Intellectual Property Rights in or arising out of or in connection with the services shall be owned by FreshBritain. Upon payment of all sums due under the Contract, FreshBritain agrees to assign the Intellectual Property Rights in the Deliverables to the Client and undertakes, at the Client’s cost to execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this clause providing that the Client agrees to grant FreshBritain a license to use the Intellectual Property Rights in the Deliverables for marketing and promotional purposes. The Client warrants that it will comply with the terms of any licenses relating to the Third Party Materials.
7.3 The Client acknowledges that, in respect of any Third Party Materials, the Client’s use of any such intellectual Property Rights is conditional on the Client obtaining a written license from the relevant licensor on such terms as will entitle the Client to use such Third Party Materials. FreshBritain will assist the Client to obtain permission to use such Third Party Material.
7.4 The Client warrants that it has obtained and will maintain all necessary licenses and consents and has complied and will continue to comply with all relevant legislation in relation to the Client Materials and the Client warrants that FreshBritain’s use of the Client Material’s will not infringe the intellectual property rights (including, without limitation, copyright and related rights) of any third party.
7.5 Nothing in these Terms of Business shall constitute any representation or warranty that the exercise by the Client of the rights granted under this Contract or the use of the Deliverables or Third Party Materials will not infringe the intellectual property rights of any third party.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know- how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Services, the Deliverables, the Disclosing Party’s business or its products or its services which the Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract , and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which blind the Receiving Party. This clause 8 shall survive termination of the Contract.
9. Liability and Indemnity
9.1 This clause 9, sets out the entire financial liability of FreshBritain (including any liability) for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of:
(a) any breach of the Contract however arising;
(b) any use made by the Client of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in the Contract limits or excludes the liability of FreshBritain:
(a) for death or personal injury resulting from its negligence; or
(b) fraud or fraudulent misrepresentation.
9.4 Subject to clause 9.2 and 9.3:
(a) FreshBritain shall not under any circumstances whatever be liable to the Client whether in contract, tort (including negligence), breach of statutory duty or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss of corruption of data or information, any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses arising under or in connection with the Contract; and
(b) FreshBritain’s total liability to the Client in respect of all other losses arising under or in connection with the Contract whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise shall in all circumstances be limited to the price paid for the Services.
9.5 The Client shall indemnify FreshBritain against all liabilities, costs, expenses, damages or losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by FreshBritain arising out of or in connection with:
(a) the Client’s exercise of the rights granted under the Contract;
(b) any breach by the Client of the terms of the Contract;
(c) any use by the Client of the Deliverables, the Client Materials or the Third Party Materials;
(d) any claim made against FreshBritain for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Deliverables, the Client Materials or the Third Party Materials. This clause 9 shall survive termination of the Contract.
10.1 Subject to clause 10.2, 10.3 and 10.4, the Contract shall terminate automatically on completion of the Services.
10.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 286 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies of the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2(b) to clause 10.2(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical) is incapable of managing his own affairs or becomes a patient under any mental health legislation.
10.3 Without limiting its other rights or remedies, either party may terminate the Contract by giving 7 days’ written notice to the other party.
10.4 FreshBritain may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
10.5 Without limiting its other rights or remedies, FreshBritain shall have the right to suspend the supply of Services under the Contract or any other contract between the Client and FreshBritain if the Client becomes subject to any of the events listed in clause 10.2(b) to clause 10.2(l), or FreshBritain reasonably believes that the Client is about to become subject to any of them.
11. Consequences of Termination
On termination of the Contract for any reason:
(a) the Client shall immediately pay to FreshBritain all of FreshBritain’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, FreshBritain shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the Client shall return all or any Deliverables which have not been fully paid for;
(c) in the event the Client terminates the Contract under clause 10.3:
(i) FreshBritain will decide in its sole discretion whether to reimburse the Client for invoices which have been paid but for which the Services have not yet been provided;
(ii) upon payment of all sums due under clause 11(a) FreshBritain agrees to assign the Intellectual Property Rights in the Deliverables which have been delivered before the Contract is terminated to the Client and undertakes, at the Client’s cost to execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this clause provided that the Client agrees to grant FreshBritain a license to use the Intellectual Property Rights in those Deliverables for marketing and promotional purposes.
(d) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of Contract which existed at or before the date of termination or expiry; and
(e) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond reasonable control of FreshBritain including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of FreshBritain’s or subcontractors.
(b) FreshBritain shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) if the Force Majeure Event prevents FreshBritain from providing any of the Services and/or Goods for more than 3 weeks, FreshBritain shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
12.2 Assignment and subcontracting:
(a) FreshBritain may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Client shall not, without the prior written consent of FreshBritain, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number or by email to the email address in the Proposal.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by the commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax or email, on the next Business Day after transmission.
(c) This clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
12.4 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority find that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
12.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.8 Variation: Except as set out in these Terms of Business, any variation, including the introduction of any additional terms and Terms of Business, to the Contract shall only be binding when agreed in writing and signed by FreshBritain.
12.9 Conflict: If there is any inconsistency between these Terms of Business and the Proposal, the terms in the Proposal shall now prevail.
12.10 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
FRESH DESIGN AND MARKETING LIMITED
A COMPANY REGISTERED IN ENGLAND AND WALES, NUMBER 03740847
REGISTERED OFFICE – THE MANOR HOUSE, MAIN STREET, SOUTH LITTLETON, EVESHAM, WORCESTERSHIRE. WR11 8TJ.