1.1 The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5 (Charges and Payment) as specified in the Contract Term Sheet.
Commencement Date: has the meaning given in clause 2.4.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.5.
Contract: the contract between TDL and the Customer for the supply of Services in accordance with these Conditions and the Contract Term Sheet.
Contract Term Sheet: the form to be completed by TDL which will set out the key commercial details of the Contract.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the person or firm specified in the Contract Term Sheet who purchases Services from TDL.
Customer Default: has the meaning set out in clause 4.2.
Data controller, Data processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Data Protection Legislation:
(a) All applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and
(b) Any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deliverables: the deliverables set out in the Contract Term Sheet produced by TDL for the Customer.
Force Majeure Event: has the meaning set out in clause 12.1.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for Services as made in writing by the Customer to TDL.
Services: the services, including the Deliverables, supplied by TDL to the Customer as set out in the Contract Term Sheet.
Specification: the description or specification of the Services provided in writing by TDL to the Customer and attached to the Contract Term Sheet.
TDL: Tomlinson Designs Limited registered in England and Wales with registered office at 2 St. Clere, Kemsing, Sevenoaks, Kent, TN15 6NL with company number 07547899.
TDL Materials: has the meaning set out in clause 4.1.8.
TDL Personnel: means one or more individuals, engaged or appointed by TDL to provide the Services to the Customer as required under the Contract.
1.3.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.3.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.3.3 A reference to writing or written includes email.
2. Basis of Contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions. The Customer shall ensure that it provides TDL with as much information as TDL reasonably requests in order to respond to the Order.
2.2 TDL shall, as soon as reasonably practicable after receiving an Order, either:
2.2.1 inform the Customer that it declines to provide the requested Services; or
2.2.2 provide the Customer with a quotation. Any quotation given by TDL shall not constitute an offer, and is only valid for a period of thirty (30) days from its date of issue.
2.3 If TDL provides the Customer with a quotation pursuant to clause 2.2.2, TDL and the Customer shall discuss and agree that quotation.
2.4 The Order shall only be deemed to be accepted when both parties sign a Contract Term Sheet, at which point and on which date the Contract shall come into existence (Commencement Date).
2.5 Any samples, drawings, descriptive matter or advertising issued by TDL, and any descriptions or illustrations contained in TDL’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Supply of Services
3.1 TDL shall supply the Services to the Customer in accordance with the Contract Term Sheet (and, where applicable, the Specification) in all material respects.
3.2 TDL shall use all reasonable endeavours to meet any performance dates specified in the Contract Term Sheet, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 TDL reserves the right to amend the Contract Term Sheet and/or the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and TDL shall notify the Customer in any such event.
4. Customer’s Obligations
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order, the Contract Term Sheet and any information it provides to TDL are complete and accurate;
4.1.2 co-operate with TDL in all matters relating to the Services;
4.1.3 provide TDL, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by TDL;
4.1.4 promptly provide TDL with such information and materials as TDL may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.5 where applicable, prepare the Customer’s premises for the supply of the Services;
4.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
4.1.7 comply with all applicable laws, including health and safety laws;
4.1.8 keep all materials, equipment, documents and other property of TDL (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the TDL Materials in good condition until returned to TDL, and not dispose of or use the TDL Materials other than in accordance with TDL’s written instructions or authorisation;
4.1.9 comply with any additional obligations as set out in the Contract Term Sheet.
4.2 If TDL’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
4.2.1 without limiting or affecting any other right or remedy available to it, TDL shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays TDL’s performance of any of its obligations;
4.2.2 TDL shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from TDL’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Customer shall reimburse TDL on written demand for any costs or losses sustained or incurred by TDL arising directly or indirectly from the Customer Default.
5. Charges and Payment
5.1 The Charges for the Services shall be calculated on a time and materials basis, in which case:
5.1.1 the Charges shall be calculated in accordance with TDL’s daily fee rates, as set out in the Contract Term Sheet;
5.1.2 TDL’s daily fee rates for each individual are calculated on the basis of an eight-hour day from 9.00 am to 5.30 pm worked on Business Days;
5.1.3 TDL shall be entitled to charge an overtime rate of:
(a) 100% of the daily hourly fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.1.2 on a Business Day; and
(b) 150% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services on any day other than a Business Day, provided that, in any event, TDL may impose a minimum charge of four (4) hours at the overtime rate specified in this clause 5.1.3(b) for each occasion when individuals are engaged by the Customer to provide the Services on any day other than a Business Day; and
5.1.4 TDL shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom TDL engages in connection with the Services including traveling expenses, travel time, hotel costs, subsistence and any associated expenses required by TDL for the performance of the Services, and for the cost of any materials. Where services are provided by third parties, such as content writers or photographers, the Customer shall pay to TDL a sum equivalent to 10% of the cost of this service for managing the third party on behalf of the Customer.
5.2 Where the Customer requires TDL to provide printed copies of any of the Deliverables produced for the Customer under the Contract, the Customer shall pay to TDL a sum equivalent to 10% of the Charges payable under that Contract for such initial printing services. In the event that the Customer subsequently requires TDL to provide further printed copies of any of the Deliverables produced for the Customer under the Contract, the Customer shall pay to TDL a sum equivalent to 15% of the Charges payable under that Contract for such additional printing services.
5.3 TDL reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding twelve (12) month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
5.4 TDL shall invoice the Customer monthly in arrears.
5.5 The Customer shall pay each invoice submitted by TDL:
5.5.1 in accordance with the payment terms set out in the Contract Term Sheet or, in the absence of any payment terms in the Contract Term Sheet within thirty (30) days of the date of the invoice; and
5.5.2 in full and in cleared funds to a bank account nominated in writing by TDL, and
5.5.3 time for payment shall be of the essence of the Contract.
5.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time as measured on the date on which payment is due (VAT). Where any taxable supply for VAT purposes is made under the Contract by TDL to the Customer, the Customer shall, on receipt of a valid VAT invoice from TDL, pay to TDL such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7 If the Customer fails to make a payment due to TDL under the Contract by the due date, then, without limiting TDL’s remedies under clause 9, the Customer shall pay an administration fee of £50 (+ VAT) and interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.7 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
5.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. Intellectual Property Rights
6.1 Subject to the Customer’s compliance with clause 5.5, all Intellectual Property Rights in or arising out of or in connection with the Services and the Deliverables (other than pre-existing Intellectual Property Rights in any materials provided by TDL) shall be owned by the Customer, provided that TDL shall continue to be free to use any know-how and residual knowledge it has gained throughout the course of providing the Services.
6.2 The Customer grants to TDL, or shall procure the direct grant to TDL of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to use, copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of promoting its business.
6.3 The Customer grants TDL a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to TDL for the term of the Contract for the purpose of providing the Services to the Customer. The Customer warrants that it is the owner or licensor of all the rights in such materials and is entitled to grant the above licence to TDL under this clause 6.3 .
7. Data Protection
7.1 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of Data Protection Legislation.
7.2 The parties agree that they shall both be data controllers under the Contract in respect of any personal data processed by it and each agrees to comply with its obligations under the Data Protection Legislation.
7.3 For the avoidance of doubt, it is stated here that neither party is a data processor on behalf of the other party in furtherance of their obligations under the Contract. In the event it is established at any time during the Contract that personal data is to be processed by the one party on behalf of the other, the parties shall:
7.3.1 promptly enter into a data processing agreement on reasonable terms to be determined by both parties to ensure full compliance with Data Protection Legislation; and
7.3.2 indemnify and keep the other party indemnified in full for any and all consequences (including a personal data breach) arising as a result of that party’s failure to comply with any of its obligations under this clause 7 .
7.4 Failure by the Customer to enter into a data processing agreement in accordance with clause 7.3.1 shall be deemed a material/serious breach which shall entitle TDL to immediately terminate the Contract without consequence or any liability under this Contract.
8. Limitation of Liability
8.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
8.1.1 death or personal injury caused by negligence;
8.1.2 fraud or fraudulent misrepresentation; and
8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1, TDL’s total liability to the Customer shall not exceed the total Charges payable under the Contract. TDL’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
8.3 Subject to clause 8.1, neither party shall have any liability to the other in respect of the following types of loss listed below:
8.3.1 loss of profits
8.3.2 loss of sales or business.
8.3.3 loss of agreements or contracts.
8.3.4 loss of anticipated savings.
8.3.5 loss of use or corruption of software, data or information.
8.3.6 loss of or damage to goodwill.
8.3.7 indirect or consequential loss.
8.4 TDL has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.5 This clause 8 shall survive termination of the Contract.
9.1 Without affecting any other right or remedy available to it, TDL may terminate the Contract by giving the other party thirty (30) days’ written notice.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so;
9.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
9.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, TDL may terminate the Contract with immediate effect by giving written notice to the Customer if:
9.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment and has still failed to pay such amount fourteen (14) days after being requested to do so in writing; or
9.3.2 the Customer fails, in the reasonable opinion of TDL, to respond to any notice, request or communication from TDL within thirty (30) days of receiving such notice, request or communication.
9.4 Without affecting any other right or remedy available to it, TDL may suspend the supply of Services under the Contract or any other contract between the Customer and TDL if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.2.2 to clause 9.2.4, or TDL reasonably believes that the Customer is about to become subject to any of them.
10. Consequences of Termination
10.1 On termination of the Contract:
10.1.1 the Customer shall immediately pay to TDL all of TDL’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, TDL shall submit an invoice, which shall be payable by the Customer immediately on receipt;
10.1.2 the Customer shall return all of the TDL Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then TDL may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1 The Customer undertakes that during the term of the Contract, and for a period of twelve (12) months after its termination, it shall not:
11.1.1 recruit or make any offer of employment or enter into any discussion or negotiations with a view to making any offer of employment to any TDL Personnel; or
11.1.2 solicit or attempt to solicit services from any TDL Personnel on their own account or entice or attempt to entice any TDL Personnel away from TDL.
11.2 In this clause 11, “Recruit” means to initiate personal contact for the purposes of hiring, but does not include responding to an unsolicited application, receiving unprompted responses to advertisements, or receiving candidates who are, without Customer involvement, presented to the Customer by a recruiting firm.
11.3 In the event the Customer breaches clause 11.1, it shall on demand pay liquidated damages to TDL, the amount of such liquidated damages being calculated in accordance with clause 11.4.
11.4 The amount of liquidated damages payable pursuant to clause 11.3 shall be a sum equal to thirty percent (30%) of the gross salary of, or the amount paid to, the TDL Personnel in question for the twelve (12) month period (or, if the TDL Personnel was employed for a period of less than twelve (12) months, thirty percent (30%) of his gross salary, or the amount paid to him, for such lesser period) prior to the said breach and, for the avoidance of doubt, the parties agree that the liquidated damages referred to this clause 11.4 are a genuine pre-estimate of the loss that TDL may suffer as a result of such breach.
12.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (Force Majeure Event). If a Force Majeure Event prevents one party from performing its obligations under the Contract for a continuous period of 30 days or more, then the other party may terminate the Contract on one (1) week’s written notice.
12.2 Assignment and other dealings.
12.2.1 TDL may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
12.2.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of TDL.
12.3.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two (2) years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.3.2.
12.3.2 each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information are subject to a contract containing terms no less onerous than those in this clause 12.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.4 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.8.1 Any notice or other communication given to TDL under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first class post or other next working day delivery service to TDL Creative, St John’s Studios, 32A Larkfield Road, Richmond, Surrey TW9 2PF, or sent by email to the address specified in the Contract Term Sheet.
12.8.2 Any notice or other communication given to the Customer under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case), or sent by email to the address specified in the Contract Term Sheet.
(a) Any notice or communication shall be deemed to have been received:
(b) if delivered by hand, on signature of a delivery receipt;
(c) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
12.8.3 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.8.3(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
12.8.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
12.9 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
12.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.