Terms of Business
These terms and conditions shall govern the supply of services (the “Project”) by Neon Design Consultancy Limited (“Neon”) to any person, firm or company (the “Client”) except to the extent that they are inconsistent or conflict with any terms and conditions agreed in writing between Neon and the Client.
Except as expressly contained in these terms and conditions, all other terms, conditions, representations and warranties whether express or implied, statutory or otherwise, are excluded by this document unless specifically agreed in writing between Neon and the Client.
These terms and conditions shall prevail over any qualification or conditions purported to be imposed by the Client, trade or custom or any previous course of dealing between Neon and the Client.
2. PROPOSALS, RECOMMENDATIONS AND PERFORMANCE
Proposals for the performance of the Project by Neon, including details of scope, fees and expenses are given to the Client by Neon in a written proposal which, upon acceptance by the Client and together with these terms and conditions, shall form a contract between Neon and the Client (the “Contract”). In the case of any inconsistency between the Proposal and these terms and conditions, these terms and conditions will prevail.
Neon’s proposals shall remain valid for 90 days from the date of their issue to the Client, unless withdrawn by Neon on written notice to the Client at any time prior to acceptance of the proposal by the Client.
Where reference is made in the Proposal or elsewhere in the Contract to a date or time period by or with which Neon is to perform any service or deliver any outputs, this is an estimate only and time shall not be of the essence. Neon shall use reasonable endeavours to meet any such dates or time periods but shall have no liability for failure to achieve any estimated dates or time periods set out in the Contract.
All Neon’s recommendations are made in good faith based on information supplied to it about the Client’s business and current technological and commercial practice. However, Neon shall have no responsibility for any loss or damage, including consequential loss, arising from the implementation of its recommendations by the Client, its employees, servants, agents or representatives.
2.5 Neon shall provide its services with reasonable care and skill.
3. FEES AND EXPENSES
The professional fee for the Project as set out in the Neon written proposal (the “Contract Fee”) is in respect of time spent on the Project by such employees, associates and consultants of Neon as Neon shall deem appropriate.
All production costs, consultancy, publishing and other professional fees, goods, services and facilities obtained and travel subsistence costs incurred by Neon in connection with the Project (“Expenses”) together with a 15 per cent handling fee on the Expenses shall be payable by the Client.
Any variation of the Project must be agreed by Neon. In the event of variation, Neon may vary the Contract Fee and any Expenses and charge for additional goods or services to be provided.
If the client is liable to pay value added tax (“VAT”), this will be added to the Contract Fee and Expenses at the rate prevailing on the date of the invoice.
The Client acknowledges that the output provided by Neon is a result of creative effort, the measure of the quality of which is inherently subjective. The Client is at liberty to reject the output, but such rejection will not entitle the Client to a reduction or refund of the Contract Fee or expenses.
Any work repeated, re-presented or conducted outside of the scope of the Proposal at the Client’s request will be charged in addition to the Contract Fee.
The Contract Fee shall be invoiced 50% at the beginning of each stage, and 50% at the conclusion of each stage.
Should any Expenses or expense item be greater than two thousand pounds (£2,000), the Client shall, on Neon’s request, pay the full amount of such Expenses or expense item in advance of the expense item or Expenses being committed.
The Client shall pay all amounts invoiced (including the Contract Fee and Expenses) in full (in sterling or the currency specified on the invoice) within 30 days from the date of issue of the invoice.
The obligation on the Client to pay under clause 4.3 above is not contingent on any factor, including receipt of funds from a third party.
Unless otherwise agreed in writing between the parties, if payment is overdue Neon may (without prejudice to its other rights and remedies) at any time from the due date suspend the Project, in full or in part, and any other related or unrelated services performed for the Client at its full discretion pending payment in full.
Neon shall charge interest on overdue amounts at a rate of four per cent per annum above the Barclay’s Bank base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the full overdue amount (including outstanding interest) unless prior consent and the agreement of a late payment date is approved (in writing) by a Neon director five days before the invoice due date.
The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
5. PROVISION OF INFORMATION AND CONFIDENTIALITY
Both Neon and the Client shall keep secret any information of a confidential nature acquired in connection with the Project concerning the other party, its business, products and processes or the Project itself.
The Client will provide Neon on request with such information as Neon considers appropriate or necessary in order to perform its services in connection with the Project. The Client recognises and confirms that Neon:
is entitled to rely on all information provided to it by the Client without independent verification;
is not responsible for the accuracy or completeness of such information; and
is further entitled to rely on information or advice provided to it or the Client by any other advisers or consultants appointed either jointly or by the Client independently.
The recipient of confidential information shall not without the prior written agreement of the other party:
disclose such information except as necessary for the performance of the Project and only to employees, agents, representatives, contractors and sub-contractors of the recipient who are made aware of the confidential nature of the information and that they owe the same duty of confidentiality as the recipient; or
copy or use the information in any way other than for the purposes of the Project.
5.4 This clause does not apply to information which is:
5.4.1 known to the recipient prior to disclosure;
in the public domain at the time of disclosure or subsequently comes into the public domain other than through disclosure in breach of the recipient’s duty of confidentiality; or
5.4.3 required to be disclosed by law.
The Client agrees that any advice provided by Neon shall not be disclosed publicly or made available to third parties without Neon’s prior written approval.
6. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights in or relating to the outputs of the Project shall remain the property of Neon unless the parties otherwise agree in writing. On payment in full of all sums invoiced by Neon in relation to the Project, Neon shall grant to the Client a worldwide irrevocable royalty-free transferable non-exclusive licence without limit of time under all of Neon’s intellectual property rights in respect of the outputs selected for use by the Client for the use of such outputs for the purposes contemplated by the parties on entry into the Contract.
Neon shall have no responsibility for applying for or obtaining registered trade marks or other forms of legal protection for any of the outputs of the Project, or for securing corresponding domain or company names, and makes no warranty or representation (unless otherwise specifically stated by Neon in writing) that any outputs would be registrable as trade marks or available as domain or company names.
The Client acknowledges and agrees that, except to such extent as may be specifically agreed in writing by Neon, Neon will not make, and has no responsibility for making, searches or enquiries into the possibility that the use of any of the outputs of the Project (including those selected by use by the Client) may conflict with third party rights. Neon makes no representations and gives no warranty that such outputs would be free from such conflicts. The Client acknowledges that it is the Client’s sole responsibility to undertake the necessary clearance searches to ensure that the use of the outputs of the Project will not infringe the rights of third parties. If Neon does agree to undertake any searches, these are intended merely as a preliminary measure to screen out certain candidate marks from longer lists of possible candidate names or marks during the course of the Project. The Client acknowledges that such searches are in no way a substitute for availability searches, and that the retention or presentation of names or marks on shortlists following a screening search of this kind is not an indication that the names or marks are available for use.
Where Neon agrees to provide outputs as part of a competitive tender process or otherwise in situations in which Neon does not receive a normal commercial fee for the work, the Client agrees not to use the outputs unless it proceeds to engage Neon to provide fee-bearing services based on them.
Unless otherwise specifically agreed in writing by Neon, the securing of licences to enable the lawful use of all illustrations and photography supplied to Neon by the Client, or by a third party at the Client’s request or with its approval (including without limitation any necessary permissions relating to image rights or other aspects of the contents of any images concerned), shall be and remain the sole responsibility of the Client.
The Client acknowledges that all images used by Neon in concept presentation or work in progress documents, are placeholder images to demonstrate a concept only. The Client agrees not to use or disseminate images used in such documents other than for the purposes of consultation and sign-off of the concept, or to persons other than:
the Client’s own project team and such other individuals within the Client’s organisation/company as need to see the documents for that purpose; or
third parties that the Client is required to consult, as stakeholders in the Project, for that purpose, and the Client shall indemnify Neon from and against all liabilities, claims, costs and expenses brought against or incurred by Neon as a result of any other use or dissemination of the images concerned.
7. LIMITATION OF LIABILITY
7.1 Subject to clause 7.2:
Neon shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
the Supplier’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), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Contract.
Nothing in these terms and conditions shall limit or exclude Neon’s liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
7.2.2 fraud or fraudulent misrepresentation; or
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.4 This clause 7 shall survive termination of the Contract.
The Client agrees to indemnify and hold harmless Neon, its officers and employees (“Indemnified Parties”) from and against any losses, claims, proceedings, damages or liabilities, whether joint or several, to which any such Indemnified Parties may become subject, related to or arising out of the Contract or the Project.
Nothing in these terms and conditions is intended to nor shall it operate to create a Partnership or Agency between the parties and neither party shall has the right to authorise any matter or expense on behalf of the other party.
If the Client is acting as professional advisor to an ultimate client, the Client shall not make any representations or warranties in connection with Neon’s services except as may be expressly agreed by Neon in writing.
During the Project and for one year following its completion, the Client shall not solicit, employ or engage any person who was an employee or consultant of Neon at any time during that period, nor shall it encourage others to do so.
11. FORCE MAJEURE
Neon shall not be liable to the Client for failure to perform or delay in performance of any of its contractual obligations to the Client attributable to any cause beyond Neon’s control.
The Client may terminate the Project at any time by not less than one month’s written notice to Neon in which event the following amounts shall become immediately due and payable by the Client:
all fees and expenses incurred by Neon up to the date of termination of the Project;
if cancelled during or at the end of an agreed stage of the Project, the full Contract Fee and other costs estimated for that stage; and
all third party liabilities incurred by Neon as a result of the cancellation.
Neon shall be entitled to terminate the Contract immediately on written notice to the Client if the Client is in breach of any term of the Contract, makes any arrangement with its creditors, or any step is taken in insolvency proceedings against or on behalf of the Client.
13. SUBCONTRACTING, ASSIGNMENTS AND OTHER DEALINGS
Neon may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
Neon may at any time assign, transfer, subcontract or deal in any other manner with all or any of its rights under the Contract.
14. APPLICABLE LAW
These terms and the Contract shall be governed by the laws of England and Wales and the parties irrevocably agree to submit to the jurisdiction of the courts of England and Wales, or to any other competent jurisdiction which may be chosen by Neon at its sole discretion.
The Client agrees that it will acknowledge the contribution made by Neon to the Project in any manner reasonably requested by Neon and that Neon may at an appropriate time place an announcement in any publications or other media, stating that Neon has assisted the Client in the Project.