Terms & Conditions

GIGANTIC DESIGN LIMITED – TERMS AND CONDITIONS OF SERVICE

1. Introduction
1.1 These Terms of Business apply in relation to all work undertaken by Gigantic Designs Limited, a company registered in England and Wales (company number 06506001) whose registered office is at 30 Dunyeats Road, Broadstone, Poole, Dorset, BH18 8AQ (the “Company”) on behalf of you (the “Client”) and, together with the Company’s proposal letter to the Client (the “Proposal Letter”) sets out the basis upon which the Company will provide its services (the “Services”) to the Client. These Terms of Business and the Proposal Letter are referred to herein as the “Contract”.
1.2 By instructing or accepting services from the Company, the Client is deemed to have accepted and agreed to be bound by the Contract (whether the Proposal Letter is countersigned by the Client or not) to the exclusion of all other terms and conditions including any contained or referred to in any letter, purchase order or other document.
1.3 Paragraph 10 below will apply whether the Contract is concluded or note and is deemed to be accepted upon receipt by the Client of any Preliminary Material.
1.4 Where these Terms of Business are inconsistent with the terms contained in the Proposal Letter, the terms contained in the Proposal Letter will prevail.

2. Proposal Letter
2.1 The offer contained in the Proposal Letter is based on current costs and will lapse automatically if not accepted within one month of the date of the Proposal Letter.
2.2 Where additional work not contemplated in the Proposal Letter is carried out for the Client, the Company may charge additional fees for that work (“Additional Fees”).
2.3 Unless the proposal letter specifies to the contrary, the proposal includes within its scope one presentation per project (or, if applicable, stage of project) and a maximum of four copies of any written report. Any additional presentations or copies of reports will be treated as
additional work under paragraph 2.2.

3. Basis of Instruction
3.1 The Company may be engaged in one of two ways: on a
retainer or on a project basis. Unless otherwise agreed in advance or in the Proposal Letter, the Company will be engaged by the Client on a
project basis.
3.2 If The Company is engaged on a “by the project basis” all fees are based on an estimation of time to be spent on “the project”. The amounts estimated are fixed for a period of 30 days from date of the proposal; thereafter The Company reserves the right to review the quantum of fees payable for the project or work.

4. Non-Exclusivity
4.1 The engagement of the services of the Company shall be on a non-exclusive basis whether on a retainer or project basis.
4.2 Unless otherwise agreed in writing, the Company may, both during and at any time after the termination of the Contract provide its services to any other person, firm or company or other legal entity (a “Person”), including any competitor of the Client, provided that, by so doing, the Company is not prevented from providing its services to the Client as agreed and does not act in breach of its obligations of confidentiality to the Client.

5. Retainer Fees
5.1 The Company shall be entitled to charge fees when providing services on a retainer basis as stated in the Proposal Letter. The Company reserves the right to increase its rates from time to time upon giving at least one month’s prior notice to the Client.

5.2 Retainer fees and any Additional Fees together with VAT shall be payable by client monthly in advance upon presentation of an invoice from the Company unless otherwise stated in the Proposal Letter.

6. Project Fees
6.1 The Company shall be entitled to charge fees when providing
services on a project basis as stated in the Proposal Letter.
6.2 Unless otherwise agreed in writing, project fees together with VAT shall be payable in two instalments as follows:  the first
instalment shall be for 75% of the project fee payable prior to the
commencement of the project upon receipt of an invoice from the Company. The second instalment shall be for 25% of the project fee and any Additional Fees payable at the conclusion of the project upon receipt of an invoice from the Company.

7. Third party disbursements and expenses
7.1 Retainer and project fees do not include expenses and
disbursements covered by this paragraph 7.
7.2 The Company shall be entitled to reimbursement of all
expenses reasonably incurred on behalf of the Client in connection with or in relation to the Contract including (but without limitation): travel costs, accommodation costs, delivery charges. Expenses will be billed monthly to the Client and shall be payable on receipt of an invoice by the Company. The Company shall provide the Client upon request with copies of receipts or other form of proof of payment for the said expenses.
7.3 Where the Company engages the services of any other Person (other than an employee or officer of the Company) in connection with the Contract, including (but without limitation) for the purposes of research, artwork, copy and printing (a “Third Party Service”), the Company may charge the Client for that Third Party Service at the cost to the Company plus a mark up of 10% together with VAT. Such charges shall be payable upon presentation of an invoice by the
Company. Where the cost to the Company for any Third Party Service will be in excess of £1,000 (inc. VAT), the Company may present its invoice for the charges in advance of the costs being incurred.

8. Payment of fees
8.1 All fees, expenses and disbursements shall be due immediately upon receipt of an invoice from the Company.
8.2 In the event that payment is not received from the Client within 30 days of the date of the invoice, the Company shall be entitled to charge interest on the amount due under the invoice from the date of the invoice until payment in full at a rate of 4% above the base lending rate of Barclays Bank Plc from time to time, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Client shall pay the interest immediately on demand.
8.3 Notwithstanding paragraph 8.2 the Company may in the
alternative claim interest at its discretion under the Late Payment of Commercial Debts (Interest) Act 1998.
8.4 The Company may withhold its services from and not to deliver materials to the Client in the event of non-payment of any sum by the Client when due to be paid.
8.5 Until payment of fees, expenses and disbursements in full, the Company will remain the owner of and/or be entitled to exert a lien over all materials relating to the Contract in its control including, but not limited to, all documents in hard copy or other form, information and software.

9. Termination
9.1 Either party may terminate the Contract by notice with immediate effect if the other party is subject to a Material Event or commits a Material Breach.
(a) A Material Event shall mean (i) in the case of a company, the
appointment of a liquidator or receiver or administrator in
relation to the company or its assets, the passing of a resolution for or
filing of a petition for or making of an order for the winding up of the
company or for an administration order, the making of an arrangement or
composition with creditors or an application to the court for the
protection from its creditors; or (ii) in the case of an individual, the presentation of a petition for the bankruptcy, a bankruptcy order or the making of an arrangement or composition with creditors.
(b) A Material Breach shall mean (i) any significant breach of the terms of the Contract that is incapable of remedy; or (ii) any
significant breach of the terms of the Contract capable of remedy which has not been remedied within 5 working days of receipt of a notice by the other party requiring the breach to be remedied; or (iii) any failure by the Client to pay any amount due to the Company within 30 days of the date of the invoice.
9.2 Either party may terminate the Contract by giving to the other at least one month’s notice of termination in writing.
(a) If the Contract is on a retainer basis, all fees, expenses and
disbursements will continue to be payable in accordance with the Contract up to and including the termination date (whether invoiced before or after the termination date).
(b) If the Contract is on a project basis:
(i) In the event of termination by the Company for a Material Breach or Material Event or by the Client (save where paragraph 9.2(b)(ii)
applies), the Company shall be entitled to: (i) retain all payments made under the Contract as at the date of termination; (ii) payment by the Client of all sums invoiced prior to the date of termination; and (iii) payment of all Additional Fees, unbilled expenses and disbursements incurred by the Company prior to the termination date.
(ii) In the event of termination by the Client before the completion of a project otherwise than as a consequence of a Material Breach by the Company, the Company shall be entitled to immediate payment of (i) the balance of the full fee agreed in relation to the project unpaid as at the date of termination (including the second instalment); and (ii) all Additional Fees, billed and unbilled expenses and disbursements incurred by the Company prior to the termination date.
9.3 The Client shall, within 5 days of termination, return to the
Company all of the documents, products and materials developed or used by the Company or its agents, subcontractors, consultants and employees in relation to the Contract in any form, including
drawings, designs, transparencies, photos, graphics, logos,
typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared by the Company in the provision of the Services.

10. Work provided in anticipation of a Contract
10.1 Any work undertaken or material delivered by the Company
before the commencement of the Contract including (but without
limitation) any materials, copy, documents, drafts, plans, schemes, drawings, images, programmes or processes (“Preliminary
Material”) shall be covered by the fees agreed in connection with the Contract. The Client shall not use any of the Preliminary Material for any
purpose other than the specific purpose for which it is provided by the Company and copyright, design rights and all other intellectual property rights (“IPR”) in or relating to the Preliminary Material shall remain vested in the Company.
10.2 In the event that the Contract is not concluded, the client: (a) shall, at its own expense, return all Preliminary Material to the
Company within 5 working days of receipt of a written request by the Company; and (b) shall not use or disclose to any Person any of the Preliminary Material unless it agrees to pay a fee to the Company in advance. In the event Preliminary Material is used or disclosed by the Client without agreeing to pay a fee to the Company in advance. The Company shall be entitled to charge a fee calculated as: A x B + C where: A = £[insert]; B = the number of hours spent by the Company creating or dealing with the Preliminary Materials; and C = any expenses or disbursements incurred by the Company in creating the Preliminary Materials.

11. Delivery of services
11.1 The Company shall exercise reasonable skill and care in the
performance of the services under the Contract.
11.2 The Company does not warrant or guarantee the performance of or quality of work in connection with any Third Party Service.
11.3 The Company shall use reasonable endeavours to meet any
timetable or target dates agreed or discussed with the Client. Time shall not, however, be of the essence in connection with the provision of services by the Company and any timetable or target dates shall not be contractually binding upon the Company and no right on the part of the Client to make a claim for loss or damage in connection with late delivery will arise unless time is expressly agreed to be of the essence.

12. Acceptance of services and materials and limitation of liability
PLEASE READ THE FOLLOWING IMPORTANT PROVISIONS CAREFULLY
12.1 All materials and services provided to the Client by the
Company under the Contract shall be deemed to be: (i) accepted by and
satisfactory to the Client; (ii) free from any defect, error or
omission; and (iii) in accordance with the Client’s requirements unless the
Client notifies the Company in writing to the contrary (a “Complaint
Notice”) within 5 working days of delivery of the material or services in
question.
12.2 If the Company does not receive a valid Complaint Notice
within 5 working days of delivery, the Company shall have no liability in
respect of any alleged defect, error or omission in connection with any such material or service and the Client shall not be entitled to make any claim for any such alleged defect, error or omission.
12.3 If the Company does receive a valid Complaint Notice
within 5 working days of delivery of any material or services, the
Company may, in its own discretion, satisfy the complaint by either: (i)
remedying the defect, error or omission; (ii) refunding to the Client any fees, expenses or disbursements charged relating to the material or services the subject matter of the Complaint Notice; or (iii) providing alternative material or services in place of the defective material or services.
12.4 This paragraph 0 sets out the entire financial liability of the
Supplier (including any liability for the acts or omissions of its
employees, agents, consultants, and subcontractors) to the Customer in respect of: (a) any breach of the Contract;
(b) any use made by the Client of the services and/or materials
provided by the Company 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.
12.5 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.6 Nothing in the Contract limits or excludes the liability of the
Company:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Company.
12.7 Subject to paragraph 12.5 and paragraph 12.6:
(a) the Company shall not be liable for:
(i)   loss of profits; or
(ii)  loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v)  loss of goods; or
(vi) loss of contract; or
(vii)   loss of use; or
(viii)   loss of corruption of data or information; or
(ix)  any special, indirect, consequential or pure economic loss, costs,  damages, charges or expenses, and
(b) the Company’s total liability in contract, tort (including
negligence or breach of statutory duty), misrepresentation, restitution or
otherwise arising in connection with the performance, or
contemplated performance, of the Contract shall be limited to the price paid for the Services.

13. Force Majeure
13.1 The Company, shall not be in breach of the Contract, nor liable for any failure or delay in performance of any obligations under the Contract arising from or attributable to acts, events, omissions or
accidents beyond its reasonable control, including but not limited to any of the following:
(a) Acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
(b) war, threat of or preparation for war, armed conflict, terrorist
attack, civil war, civil commotion or riots;
(c) compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law);
(d) fire, explosion or accidental damage;
(e) collapse of building structures, failure of plant machinery,
machinery, computers or vehicles;
(f) non-performance by suppliers or subcontractors; and
(g) interruption or failure of utility service, including but not limited to electric power, gas or water.

14. Confidentiality
14.1 The Company shall keep confidential and shall not,
without the Client’s prior consent, use or disclose to any third party any
information provided to it on a confidential basis by the client or any person firm or company on behalf of the client or any confidential information produced or provided by the Company to the client in
connection with and in the performance of the Contract.
14.2 The Company shall be entitled to use as it sees fit any
information or material provided to it under the Contract not falling within the scope of paragraph 14.1.
14.3 Paragraph 14.1 shall not prevent the Company from disclosing any information it is required by law or by any regulatory body to
disclose or any information already in the public domain (otherwise than as a result of a breach of paragraph 14.1.).

15. Copyright and other Intellectual Property Rights
15.1 All IPR in the documents, products and materials developed by the Company or its agents, subcontractors, consultants and employees in relation to the Contract in any form, including drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared by the Company in the provision of the Services (the “Contract Material”) shall be owned by the Company. Subject to payment to the Company of all sums due to it under the Contract, on completion of the Services the Company licenses to the Client all such IPR to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to
enable the Client to make reasonable use of the Services solely for the purpose described in the Proposal Letter.
15.2 If the Client supplies such design work or matter to the Company, the Client warrants that: (a) the proposed use or incorporation of such materials will not infringe any third party right in copyright or other property rights;
(b) where the Client is not the owner of all copyright and intellectual property rights in such materials the Client has received all necessary consents and licenses for the proposed use of such material.
15.3 The Client agrees that it:
(a) shall not copy or interfere with or amend any of the Contract
Materials or authorise any act which may abrogate the Company’s copyright or intellectual property rights in the Contract Materials; and
(b) shall ensure, unless otherwise agreed in writing, on publication of the Contract Materials an appropriate copyright acknowledgement shall be published.
15.4 Without prejudice to any other remedy available to the
Company for infringement of any IPR, the Client agrees to indemnify the Company in respect of all losses, expenses and costs (including legal costs) incurred or resulting from any acts of infringement of any IPR in or relating to any Contract Material or any Preliminary Material either (i) committed by the Client or (ii) directly or indirectly caused by or resulting from any act of omission of the Client.