These Conditions shall apply to all commissions of work carried out by Baxter and Bailey (‘BB’ ‘we’ ‘us’ ‘our’) except to the extent otherwise agreed by us in writing. In these Conditions, those who commission us are referred to as ‘the Client’. In the event that any one or more of these Conditions proves to be unenforceable, the remaining Conditions shall nevertheless continue to have full force and effect.
It is our normal practice to submit a Proposal (“the Proposal”) for each project to the Client for approval before starting work. The Proposal will include an estimate of fees and costs, which will remain valid for a period of three months from the date of the Proposal. Once approved by the Client, the sums for fees and costs referred to in the Proposal are fixed, except in the case of any project where fees are to be charged to the Client on an hourly or daily basis as incurred, together with production costs and expenses. Where circumstances arise which could not reasonably have been foreseen at the time fees and costs were agreed, and which result in increased fees or costs to us, the Client agrees that we may pass on such increased fees and costs in addition to those agreed, having notified the Client in advance. In addition to the fees, costs for externally sourced goods and services (“Additional Costs”) will be recharged to the Client. We will charge 20% in addition to the actual costs of such goods and services as a handling charge.
All known costs will be included in the Proposal. Where there may be additional costs likely but not known at appointment we may suggest an allowance is allocated by the Client. We will make an allowance for meetings within the Proposal in agreement with the Client. Other than those specified in the Proposal, our fees do not cover additional meetings, which we will agree with the Client on an ad hoc basis. Costs will depend on where the meeting is to be held, who is required to attend and its duration. All sums referred to in any Proposal, estimate or quotation are exclusive of Value Added Tax which will be charged where applicable at the prevailing rate.
Additional work necessitated by changes required by the Client to an agreed brief or scope of work will result in additional charges. Where practicable, these will be agreed with the Client before additional fees and costs are incurred.
An initial payment will be payable by the Client at the beginning of any project. The amount of this payment will be 50% of the agreed fees and costs for the first stage of work, followed by payment of the balance of the fees and costs for the first stage on completion and delivery of that stage. Thereafter, the Client shall make regular interim payments on account of 50% of the agreed budget for each stage of work at the beginning of each stage and 50% on completion and delivery of the work for each stage. If the Client’s purchasing procedures require Purchase Orders to be obtained before payment is made, it is the responsibility of the Client to provide valid Purchase Orders promptly. We reserve the right not to start work on any stage of a project in respect of which a Purchase Order or other valid authorisation has not been provided by the Client. Payment of invoices is due on specific agreed dates, or otherwise within 30 days of receipt by the Client. We reserve the right not to start work on any stage of a project where payment is overdue for an earlier stage of work. Late payment will be subject to interest at 8% per month unless adjusted terms are mutually agreed beforehand. All payments shall be in pounds sterling and made by means of a cheque or credit transfer direct to our bank account and the cost of transmission and/or currency conversion shall be at the expense of the Client. Where fees and costs have been agreed in any currency other than sterling, payments shall be calculated by taking the closing spot rate in London for buying sterling quoted by NatWest bank plc on the second working day preceding the date payment falls due.
In the event of cancellation of a project in progress by the Client for any reason, the Client shall pay to us all the fees for the stage of work in progress at the time of cancellation, together with any costs already incurred by us and those costs to which we are committed in connection with the project, or all such fees and costs for the project as a whole if no interim stages are agreed.
In the event that any project requires material or services to be provided by third parties, including, without limitation, specialist photography or illustration for which the agreed cost is greater than £1,000 we require payment in full by the Client of such costs in advance of the material or service being commissioned by us. Alternatively, we may agree to the Client making payment directly to the third party supplier under certain circumstances.
BB shall retain the ownership of the entire copyright, registered design rights, unregistered design rights, trade and all other intellectual property rights, title and interest of whatsoever nature throughout the world (“the Intellectual Property Rights”) in all work produced by us in the course of any project for which we are commissioned, including, without limitation, all rough designs, finished designs in all media, computer-generated material, models, reports, artwork and presentation visuals. The Intellectual Property Rights in our work will remain our property until all stages of any project have been completed and paid for in full, at which time, such rights in the completed work may be assigned to the Client in full or in part by agreement, at our absolute discretion. Any such assignment will not include preparatory work, or designs, concepts and proposals not accepted or taken forward for implementation by the Client and we may at our discretion use any such designs, concepts and proposals for any other purpose, including our work for other clients. We grant to the Client an exclusive, limited, revocable licence to use the work produced by us for any project for a single use only and strictly for the purposes and in the territories defined in the Client’s original written brief, or as set out in the Proposal. This licence may be revoked by us by written notice to the Client in the event that the Client does not perform any of its obligations to us (including, without limitation, its payment obligations) or uses all or part of the work for purposes and/ or in territories which have not been agreed by us. Further or additional use by the Client of the work may be permitted by us at our absolute discretion, subject to our agreement to and payment by the Client of additional fees and expenses to us and licence fees to third parties, such fees to be negotiated in good faith by the parties. Material commissioned by us from third parties including, without limitation, photography, illustration and models, remains the property and copyright of the party creating the work and unless otherwise agreed with the party creating the work may be used only for the purpose commissioned and in the territories agreed in advance. At the request and cost of the Client, we will endeavour to obtain additional rights in such material, if required. All documents including, without limitation, reports, proposals, working processes, presentations, designs, and supporting materials, estimates of fees and costs produced by us are disclosed in confidence for the sole use of the Client and may not be disclosed to any third party without our prior written consent.
We are entitled to claim exclusive authorship of all work created by us and to use any such work for the purposes of our own publicity. In the event that the Intellectual Property Rights in any of our work is assigned to the Client, upon assignment, the Client shall grant to us and our agents, without charge, an irrevocable worldwide licence to use and reproduce the work for such publicity purposes, in all media. We will not use or publish any such material that is to the best of our knowledge not already in the public domain and is notified to us by the Client as being commercially confidential. The Client shall not authorise any third party to claim credit for work created by us.
We will make every reasonable effort to ensure that the content of all work produced by us and submitted to the Client is correct. However, the Client shall be responsible for checking and approving the content of all such work, including text, photography, illustrations and artwork, and any additional fees and production costs incurred in correcting or changing designs and artwork in production or following production will be borne by the Client. Any complaint concerning the quality or suitability of our work must be notified to us in writing within seven days of receipt by the Client and in the absence of such notice, the Client will have been deemed conclusively to have accepted such work.
The Client agrees to pay the licence fee or other usage fee properly due to the copyright holder in respect of any typeface specified by us and agreed by the Client for use as part of its branding, or communications materials. Such fees are not included in any estimate or quotation provided by us.
To the extent permitted by law we shall not be liable to the Client for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the project.
The Client warrants that material supplied to us by the Client, its agents or representatives, for use in any project will not breach the copyright, design right, trademark, patent or other intellectual property rights of any third party and the Client agrees to indemnify us against all costs, claims, © Baxter and Bailey, 2018 damages and expenses incurred by us as a result of any claim brought against us by a third party alleging a breach of such Intellectual Property Rights or other rights. We warrant that, to the best of our actual knowledge and belief, the work produced by us for any project or assignment will not infringe the intellectual property rights of any third party and we agree to indemnify the Client against any costs, claims and expenses incurred by it as a result of any breach by us of this warranty.
All materials and property (including, without limitation, illustrations, photographs and artwork) delivered or handed over to the Client or to the Client’s agents or representatives is the responsibility of the Client and, if lost, damaged or destroyed, may only be replaced by incurring additional fees and costs. The Client shall bear the full replacement costs of any such materials and property belonging to us or to any third party which is lost, damaged or destroyed while in the possession of the Client or its agents or representatives. All materials and property belonging to the Client but held by us will be held at the risk of the Client. The Client is therefore advised to make arrangements for insurance of all such materials and property.
We shall not have any liability for any delay or for the consequences of any delay in performing any of our obligations to the Client if such delay results from Force Majeure, or otherwise is due to a cause beyond our reasonable control.
Any information (save information already in the public domain) acquired by either us or the Client or any member of their staff or their representatives regarding any aspect of the business of the other shall be treated as confidential and shall not be communicated or divulged to any third party except to its professional representatives or advisers or as may be required by law or any legal or regulatory authority without the prior written authority of the other, except as may be reasonably necessary for carrying out the parties’ obligations to each other under these Conditions.
The Client shall not at any time during or for a period of 6 months after completion by us of any project on its own behalf or on behalf of any third party, either directly or indirectly solicit or procure the employment or engagement of any person who is either employed or engaged by us on work for the Client.
In the absence of written confirmation from us to the contrary, these Terms & Conditions will take precedence over any other conditions.
Nothing in these Conditions is intended to nor shall operate to create a partnership, or to authorise either party to act as agent for the other and neither party shall have the authority to act in the name or on behalf of or otherwise bind the other in any way (including, but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
These Conditions and our relationship with the Client shall be governed by and construed in accordance with English law. We and the Client irrevocably agrees to submit to the courts of England over any claim or matter arising under or in connection with these Conditions.
Last updated: 1st March 2019
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