standard terms of business
Confirmation of order
To avoid misunderstandings every commission must be clearly specified in a written brief or order from the client. If BREATHE Creative, a division of BREATHE Marketing Limited, agree to commence work based upon an oral request the client will be responsible for all errors arising from any misunderstandings up to the time of written confirmation from the client.
Any quotation for the price of work to be undertaken by BREATHE will only be valid for thirty days from the date it is issued. If the quotation is based upon insufficient information from the client, an extra charge may be made in respect of work thereby not taken into account in preparing the quotation.
Whilst time shall not be of the essence of the Contract BREATHE shall be responsible for any failure to deliver work in accordance with an agreed delivery schedule unless the reason for the delay is outside of the reasonable control of BREATHE (to include any delay by the client giving instructions to BREATHE or approving work).
BREATHE is entitled to make additional charges for any work required in advance of an agreed timetable.
Unless otherwise specified within an accepted quotation, work chargeable by BREATHE will be charged according to the time spent thereon in excess of the time estimates set out within such a quotation at the normal charging rates of BREATHE for the personnel involved.
The normal charging rates of BREATHE for all or any of its personnel, as applicable from time to time, are available upon request. In the absence of any such request, the client is deemed to accept those charging rates. BREATHE will notify the client of any change to the charging rates for its personnel during the currency of any commission.
All Sub-Contractor costs incurred by BREATHE (including inter alia printing, photography, typesetting etc.) will be charged to the client, together with a handling fee. BREATHE will incorporate a provisional handling fee in respect of estimated sub-contractor costs within its initial fee estimate.
Alterations and extra work
If the client alters the brief or terms of the commission, or requires alterations to approved design or artwork, then an additional charge will be made to the client for such work at BREATHE’s normal charging rate.
Any dispute as to the amount or applicability of an invoice must be raised in writing with BREATHE within fourteen days from receipt of the invoice, otherwise the invoice shall be deemed correct and payment will be due within thirty days of the invoice date or in accordance with any other trading terms agreed.
In the absence of other terms specifically agreed in writing between the parties, all accounts of BREATHE are due within thirty days of the date of the invoice and BREATHE reserves the right to charge interest at the rate equivalent to 2% per annum above LIBOR as then current on any sums overdue.
Any printing proofs, artwork, dummies etc sent directly to the client by any sub-contractor of BREATHE must be returned via BREATHE before final production otherwise no responsibility is accepted in relation to errors or inadequacies in such work.
Approval of artwork/proofs
BREATHE will submit all artwork and proofs to the client for approval. If the client, its agent or representative notifies BREATHE in writing of any errors or shortcomings in the artwork or proofs, these will be rectified free of charge within the terms of the brief. If the client, its agent or representative authorises BREATHE to proceed to production of the finished job based upon such artwork or proofs (whether orally or in writing), BREATHE will not be responsible for the cost of rectifying, or the consequences of any errors in the artwork or proofs other than those notified by the client to BREATHE in writing, prior to such authority to proceed.
The ownership, unregistered design right and copyright in all original design and illustrations produced by BREATHE vest in BREATHE. Payment of BREATHE’s relative invoice in full entitles the client to a worldwide licence to use such designs or illustrations for the purposes for which they were commissioned.
Electronically displayed designs
BREATHE grants to and the client accepts a non-exclusive perpetual licence to use any source code and software supplied as part of the services of BREATHE (other than proprietary software) only for the proper access running service and maintenance of the media supplied in the territory and market category for which BREATHE has supplied its services.
The client agrees only to use any proprietary software that is supplied as part of the service of BREATHE subject to and in accordance with the terms of the relevant proprietary software licence.
BREATHE is entitled to claim authorship of a design for which it was commissioned and the published work shall bear a credit to BREATHE displayed in a manner to be agreed.
Any bespoke exhibition stand designed and contracted by BREATHE remains the property of BREATHE and is hired out for the duration of the specific exhibition for which it was designed at the agreed fee unless otherwise agreed by both parties in writing.
Material supplied by client
Wherever the client provides material in the form of illustrations, artwork, written material etc, or defines specific features of any design, in either case to be incorporated in the work commissioned, BREATHE relies upon the client to ensure that the use of such material or features would not constitute a breach of copyright, trademark or other intellectual property right and would not amount to passing off. The client will indemnify BREATHE in respect of the consequences of any such breach or passing off so arising subject to the limitation of liability within the contract.
Abandoned or rejected work
If the client rejects the concept stage design work produced by BREATHE, then the client may either require BREATHE to produce further concept work at no additional fee or discontinue the commission in which case the client shall be liable to pay to BREATHE half of the agreed fee in respect of the concept stage. This option may only be exercised on one occasion, and the client shall not be entitled to require BREATHE to produce further concept work at no additional fee after BREATHE has already done so following presentation of the first version of the concept stage design work.
In any correspondence, quotation or acceptance of order all prices are exclusive of VAT which will be charged additionally at the rate applying at the time of the invoice.
BREATHE will charge for any additional expenses such as, but not exclusively, hotel or travelling expenses incurred in the execution of a commission.
Clients duty to provide information
a) The client shall be solely responsible for providing BREATHE with all the necessary information concerning its goods/services, the nature of the services required from BREATHE (including scope of use), the market and generally. BREATHE shall not be responsible for any shortcomings in such information. The client accepts that its knowledge and experience in its industry sector is vital in this regard.
b) BREATHE warrants that its own design work is original and that it will not knowingly infringe the rights or intellectual property of the third party but (unless expressly agreed to the contrary) BREATHE is under no obligation to make any enquiry in this respect. BREATHE will indemnify the client fully against all costs, claims and liabilities reasonably incurred by the client resulting from a breach of this warranty PROVIDED HOWEVER that the client acknowledges that it has a duty to mitigate its losses and that it owes a duty of care to BREATHE in the conduct of a claim where the client intends to look to BREATHE under this warranty. The client shall give BREATHE notice as soon as it becomes aware of any circumstances where it might subsequently wish to make a claim against BREATHE under this indemnity. The liability of BREATHE under these provisions shall be subject to the limitation of liability within the Contract.
c) The client warrants that it has the appropriate rights in any material or on any media provided by or on its behalf to BREATHE for the same to be used without restriction (unless expressly stated) by BREATHE in the course of providing its service to the client and indemnifies BREATHE fully against all costs, claims and liabilities if this is not the case subject to the limitation of liability within the contract.
Limitation of liability
a) The liability of BREATHE under its contract with the client or in tort shall not exceed the sums paid the client under the contract in respect of which any claim is made.
b) Neither party shall be liable for any indirect or consequential loss (including loss of sale/ profit or production, damage to goodwill/reputation, packaging or distribution costs) PROVIDED HOWEVER that the client acknowledges that if the Contract is terminated as a result of a breach of Contract or negligence by the client then BREATHE’s losses recoverable from the client shall include the profit of BREATHE in respect of that part of the Contract that it is prevented from performing.
c) The liability of the client to BREATHE for breach of contract or in respect ofits contractual indemnities shall be limited to the value of the contract.
d) Nothing shall restrict or exclude the liability of BREATHE for death or personal injury arising as a result of its negligence.