Kerry Leslie: Design Services
Terms and Conditions
Updated April 2018
Please read these Terms and Conditions carefully. All contracts that the Designer may enter into from time to time [for the provision of the Designer's services] shall be governed by these Terms and Conditions, and the Designer will ask the Client for the Client's express written acceptance of these Terms and Conditions before providing any such services to the Client.
1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:
"Acceptance Criteria" means compliance with the warranties set out in Clause 4.3;
"Assigned Deliverables" means those Deliverables (excluding the Third Party Materials and the Client Materials) the rights in which are to be assigned (rather than licensed) by the Designer to the Client under Clause 7, as specified in Section 4 of the Statement of Work;
"Business Day" means any weekday other than a bank or public holiday in England;
"Business Hours" means the hours of 09:00 to 17:30 GMT/BST on a Business Day;
"Charges" means the following amounts:
(a) the amounts specified in Section 7 of the Statement of Work;
(b) such amounts as may be agreed in writing by the parties from time to time; and
(c) amounts calculated by multiplying the Designer's standard time-based charging rates (as notified by the Designer to the Client before the date of the Contract) by the time spent by the Designer performing the Services (rounded down by the Designer to the nearest quarter hour).
"Client" means the person or entity identified as such in Section 1 of the Statement of Work;
"Client Confidential Information" means:
(a) any information disclosed by or on behalf of the Client to the Designer at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked or described as "confidential"; or
(ii) should have been reasonably understood by the Designer to be confidential;
(b) the terms of the Contract; and
(c) the Deliverables;
"Client Materials" means all works and materials supplied by or on behalf of the Client to the Designer for incorporation into the Deliverables or for some other use in connection with the Services;
"Contract" means a particular contract made under these Terms and Conditions between the Designer and the Client;
"Deliverables" means those specified in Section 4 of the Statement of Work that the Designer has agreed to deliver to the Client under these Terms and Conditions;
"Designer" means Kerry Leslie - www.kerryleslie.com
"Effective Date" means the date of execution of a Statement of Work incorporating these Terms and Conditions;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Licensed Deliverables" means the Deliverables excluding the Assigned Deliverables, the Third Party Materials and the Client Materials;
"Minimum Term" means, in respect of the Contract, the period specified in Section 2 of the Statement of Work;
"Permitted Purpose" means the delivery of services listed in the Statement of Work;
"Services" means the graphic design services specified in Section 3 of the Statement of Work;
"Statement of Work" means a written statement of work agreed by or on behalf of each of the parties;
"Term" means the term of the Contract, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Terms and Conditions" means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions and the Statement of Work, including any amendments to that documentation from time to time; and
"Third Party Materials" means the works and/or materials comprised in the Deliverables (excluding the Client Materials), the Intellectual Property Rights in which are owned by a third party, and which are specified in Section 4 of the Statement of Work or which the parties agree in writing shall be incorporated into the Deliverables.
This document is gender-neutral and uses gender-inclusive terminology. ‘They’ may refer to the singular or to the plural depending on the context.
Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
2.1 The Contract shall come into force upon the Effective Date.
2.2 The Contract shall continue in force until the acceptance of the Deliverables in accordance with Clause 5, subject to termination in accordance with Clause 16.
2.3 Unless the parties expressly agree otherwise in writing, each Statement of Work shall create a distinct contract under these Terms and Conditions.
3.1 The Designer shall provide the Services to the Client in accordance with these Terms and Conditions.
3.2 The Designer shall provide the Services with reasonable skill and care.
3.3 The Designer shall keep the Client informed about the progress of the Services and, in particular, shall promptly provide information about such progress following receipt of a written request from the Client to do so.
3.4 The Designer shall comply with all reasonable requests and directions of the Client in relation to the Services.
4.1 The Designer shall deliver the Deliverables to the Client.
4.2 The Designer shall use reasonable endeavours to ensure that the Deliverables are delivered to the Client in accordance with the timetable set out in Section 5 of the Statement of Work.
4.3 The Designer warrants to the Client that:
(a) the Deliverables will conform with the requirements of Section 4 of the Statement of Work as at the date of acceptance of the Deliverables;
(b) the Deliverables will be free from material defects; and
(c) the Deliverables when used by the Client in accordance with these Terms and Conditions will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
5.1 Within 5 Business Days following the delivery of Deliverables to the Client, the Client shall:
(a) review the Deliverables to determine whether they comply with the Acceptance Criteria; and
(b) notify the Designer in writing of the results of such review, providing full details of any non-compliance with the Acceptance Criteria.
5.2 If the Client does not give to the Designer a notice under Clause 5.1, within the period referred to in Clause 5.1, then the Deliverables shall be deemed to meet the Acceptance Criteria.
5.3 If the Deliverables do not comply with the Acceptance Criteria and the Client notifies the Designer of the non-compliance in accordance with this Clause 5, the Designer will have a further reasonable period agreed by the parties (of no less than 5 Business Days and no more than 20 Business Days) to remedy the non-compliance, following which Client will repeat the review.
5.4 If the Deliverables do not meet the Acceptance Criteria at the time of a second (or subsequent) acceptance review under this Clause 5, then Designer shall be deemed in breach of the Contract.
5.5 If the Client accepts or is deemed to accept the Deliverables under this Clause 5, then subject to Clause 14.1 the Client will have no right to make any claim under or otherwise rely upon Clause 4.3 unless the Client could not reasonably have been expected to have identified the breach of that provision during the testing or review process.
6. Client Materials
6.1 The Client must supply to the Designer the Client Materials specified in Section 6 of the Statement of Work, in accordance with the timetable specified in Section 5 of the Statement of Work.
6.2 The Client hereby grants to the Designer a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Materials to the extent reasonably required for the performance of the Designer's obligations and the exercise of the Designer's rights under these Terms and Conditions, together with the right to sub-license these rights to the extent reasonably required for the performance of the Designer's obligations and the exercise of the Designer's rights under these Terms and Conditions.
6.3 The Client warrants to the Designer that the Client Materials when used by the Designer in accordance with these Terms and Conditions will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
7. Intellectual Property Rights
7.1 The Designer hereby assigns to the Client all of its Intellectual Property Rights in the Deliverables, whether those Intellectual Property Rights exist on the Effective Date or come into existence during the Term, excluding the Intellectual Property Rights in the Client Materials and the Third Party Materials. This assignment is for the full term of the assigned rights, including all extensions, renewals, reversions and revivals, and includes the right to bring proceedings for past infringements of the assigned rights.
7.2 The Designer shall ensure that the Third Party Materials are:
(a) licensed to the Client in accordance with the relevant licensor's standard licensing terms;
(b) licensed to the Client on reasonable terms notified by the Designer to the Client;
(c) sub-licensed by the Designer to the Client on reasonable terms notified in writing by the Designer to the Client; or
(d) sub-licensed by the Designer to the Client on the basis of a non-exclusive, worldwide, perpetual and irrevocable licence to use the Third Party Materials in connection with the Deliverables, as reasonably agreed between the parties from time to time.
8.1 The Client shall pay the Charges to the Designer in accordance with these Terms and Conditions.
8.2 If the Charges are based in whole or part upon the time spent by the Designer performing the Services, the Designer must obtain the Client's written consent before performing Services that result in any estimate of time-based Charges given to the Client being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Client agrees otherwise in writing, the Client shall not be liable to pay to the Designer any Charges in respect of Services performed in breach of this Clause 8.2.
8.3 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, not inclusive of VAT. VAT is not applicable.
8.4 The Designer may elect to vary any element of the Charges by giving to the Client not less than 30 days written notice of the variation, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 2% over the percentage increase, during the same period, in the Retail Prices Index (all items) published by the UK Office for National Statistics.
9.1 The Designer shall issue invoices for the Charges to the Client on or after the invoicing dates set out in Section 7 of the Statement of Work.
9.2 The Client must pay the Charges to the Designer upon receipt of invoice, unless otherwise mutually discussed and documented through the commissioning process and highlighted on the Statement of Work.
9.3 The Client must pay the Charges by BACS/bank transfer (using such payment details as are notified by the Designer to the Client from time to time).
9.4 If the Client does not pay any amount properly due to the Designer under these Terms and Conditions, the Designer may:
(a) charge the Client interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
10. Designer's Confidentiality Obligations
10.1 The Designer must:
(a) keep the Client Confidential Information strictly confidential;
(b) not disclose the Client Confidential Information to any person without the Client's prior written consent;
(c) use the same degree of care to protect the confidentiality of the Client Confidential Information as the Designer uses to protect the Designer's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Client Confidential Information; and
(e) not use any of the Client Confidential Information for any purpose other than the Permitted Purpose.
10.2 Notwithstanding Clause 10.1, the Designer may disclose the Client Confidential Information to the Designer's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Client Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Client Confidential Information.
10.3 This Clause 10 imposes no obligations upon the Designer with respect to Client Confidential Information that:
(a) is known to the Designer before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Designer; or
(c) is obtained by the Designer from a third party in circumstances where the Designer has no reason to believe that there has been a breach of an obligation of confidentiality.
10.4 The restrictions in this Clause 10 do not apply to the extent that any Client Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Designer on any recognised stock exchange.
10.5 Upon the termination of the Contract, the Designer must immediately cease to use the Client Confidential Information.
10.6 Following the termination of the Contract, and within 5 Business Days following the date of receipt of a written request from the Client OR within 5 Business Days following the state of termination of the Contract, the Designer must destroy or return to the Client (at the Client's option) all media containing Client Confidential Information, and must irrevocably delete the Client Confidential Information from its computer systems.
11. Designer's Publicity Obligations
11.1 The Designer must not make any public disclosures relating to the Contract or the subject matter of the Contract (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the Client.
11.2 The Designer reserves the right to use photographs of the design work for the purpose of their portfolio.
12. Limitations and exclusions of liability
12.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
12.2 The limitations and exclusions of liability set out in this Clause 12 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 12.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
12.3 The Designer will not be liable to the Client in respect of any losses arising out of a Force Majeure Event.
12.4 The Designer will not be liable to the Client in respect of any loss of profits or anticipated savings.
12.5 The Designer will not be liable to the Client in respect of any loss of revenue or income.
12.6 The Designer will not be liable to the Client in respect of any loss of use or production.
12.7 The Designer will not be liable to the Client in respect of any loss of business, contracts or opportunities.
12.8 The Designer will not be liable to the Client in respect of any loss or corruption of any data, database or software.
12.9 The Designer will not be liable to the Client in respect of any special, indirect or consequential loss or damage.
13. Force Majeure Event
13.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
13.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:
(a) notify the other at their earliest convenience; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
(c) when a Force Majeure Event has passed, the parties must communicate any timeline alterations, and address or reaffirm any associated deadlines.
13.3 A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
14.1 Either party may terminate the Contract by giving to the other party not less than 30 days written notice of termination, expiring after the end of the Minimum Term.
14.2 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party commits any material breach of the Contract, and the breach is not remediable;
(b) the other party commits a material breach of the Contract, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches the Contract (irrespective of whether such breaches collectively constitute a material breach).
14.3 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract); or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
14.4 The Designer may terminate the Contract immediately by giving written notice to the Client if:
(a) any amount due to be paid by the Client to the Designer under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Designer has given to the Client at least 30 days written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 14.4.
15. Effects of termination
15.1 Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 5.5, 7.1, 7.2, 7.4, 9.2, 9.4, 15, 16, 19, 20.
15.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.
16. Non-refundable Deposit & Kill Fee
16.1 The Designer may request a non-refundable deposit prior to the commencement of work. This will be determined on a project-by-project basis and listed in the Statement of Work document supplied.
16.2 This non-refundable deposit and the associated cancellation clause (16 - Termination, 16.3 - Kill Fee) protects the Designer from having hours of uncompensated work during the commissioning, critical research, brainstorming and conceptualisation phase of a project.
16.3 The Kill Fee is equal to the amount of the initial deposit plus any additional expenses incurred above and beyond the deposit amount.
16.4 The Statement of Work outlines the stages of the project and the Kill Fee may rise incrementally, in accordance within the stages and the progress of the project.
16.5 If the Client terminates the contract resulting in Kill Fee:
(a) All materials delivered to the client to date in connection with that specific project must be returned by the client, to the Designer
(b) The client is not entitled to use any of the work created in connection with the project without the Designer’s consent. The use of the Designer’s work without consent could result in additional fees and/or legal action
(c) The Designer reserves the right to keep, modify, or re-use all original artwork and digital files prepared in connection with the project, as long as it does not infringe on the associated client’s existing brand prior to the commencement of work by the Designer.
17. Status of Designer
17.1 The Designer is not an employee of the Client, but an independent contractor. The Designer and the Client acknowledge that this Agreement does not create a joint venture between them, and is exclusively a contract for a service.
18.1 In connection with providing the Services hereunder, the Designer will only be reimbursed for expenses that have been approved in advance.
19.1 These Terms and Conditions shall be governed by and construed in accordance with English law.
19.2 The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect.
19.3 Except as otherwise provided in this Agreement, all monetary amounts referred to in the Statement of Work are in GBP (Great British Pound).
20. Statement of Work
20.1 Instruction from the Client to the Designer to commence work, and/or, approval from the Client in relation to the Designer’s announcement of the commencement of the work, will be taken as confirmation of acceptance of these Terms and Conditions and Statement of Work.
20.2 The Designer will not commence work unless Terms and Conditions (this document, supplied as a PDF) and Statement of Work (additional PDF) have been approved by both parties.