1 Introduction
1.1 We, Aeron Branding UK Limited Registered in England and Wales Number 088 42 767, Registered Office Address No. New Penderel House, 4th Floor, 283 – 288 High Holborn, London, WC1V 7HP, United Kingdom (hereafter known as Aeron) agree to serve as your consultant upon the following terms and conditions (“the Terms”), and the placing of business through us constitutes an acceptance of these Terms, subject to any amendments separately agreed in writing.
1.2 We act in all our contracts as a principal at law.
2 Agency Services
2.1 In consideration of you paying the fee in accordance with clause 4 below, we will perform the services for you that are set out in the programme of work (“the Programme”) which is attached to these Terms.
3 Approvals and Authority
3.1 We shall submit the Programme to you for approval, together with approximate estimates of the cost of executing our recommendations (“general approval”).
3.2 After obtaining your general approval in writing of the Programme we will submit to you for specific written approval:
3.2.1 estimates of the cost of the various items of the Programme; and
3.2.2 drafts, copy and layouts for such Programme.
3.3 Your specific approval of the drafts, copy, layouts and estimates will be our authority to purchase production materials, prepare proofs and enter into contracts on the basis of the estimates.
3.4 You may cancel or request us to change any and all plans, schedules or work-in-progress and we shall take all reasonable steps to comply, provided that we can do so without incurring costs arising from our contractual obligations to third parties and suppliers.
3.5 You and we agree that we shall be entitled to accept instructions and approvals as required by this clause 3 from any individual holding himself out as being authorised to give such instructions or approval on your behalf. We shall not be liable to you for any delay to the Programme caused by such individuals being unavailable when required.
4 Remuneration
4.1 In consideration for our services you agree to pay us a fee (“the Fee”) which will be estimated or agreed between us in advance. The Fee is exclusive of the third party costs, disbursements and out-of-pocket expenses which will be charged to you at cost plus a handling charge of 15%. All of these costs will be estimated and subject to your approval.
4.2 Project Operating Costs: means the following project related house operating administration costs: postage and packaging, local and international telephone calls and faxes, general stationery, photocopying, presentation documents printing and storage
4.2.1(“Project Operating Costs”) incurred by the Consultancy in the performance of the Services, other than Expenses and Programme Costs (as defined in Clause 4.1 above), shall be charged to the Client at a rate of 2% of the Fees.
4.3 We reserve the right to increase the Fee if you:
4.3.1 request us to perform additional services for you;
4.3.2 request any changes or additions to the nature of the Programme; or
4.3.3 if you change any agreed timetable in which the Programme is to be performed.
4.4 In the case of a Programme with a duration of more than 12 months, the Fee will be reviewed on the anniversary date of its commencement and annually thereafter.
5 Terms of Payment
5.1 You agree to pay the 50% of the Fee allocable to each phase of the Programme prior to commencement of the phase. You agree to pay the remaining 50% of the Fee allocable to each phase of the Programme upon completion of the phase. Invoices in respect of the final Fee will be submitted to you at the end of the project and you agree to pay these within 30 days of presentation.
5.2 We will provide you with estimates of disbursements and expenses for each phase and you agree to pay these in full prior to the commencement of the phase.
5.3 We shall include on our invoices, where appropriate, any VAT or other legally required charges at the prevailing rates.
5.4 You must advise us of any discrepancies on invoices in writing within 7 days of issue to allow any investigations to take place as soon as possible.
5.5 If you fail to settle any invoice by the due date you shall be liable, without reminder and without prejudice to any other rights we may have, for interest of 2% per month (or part thereof) with effect from the date on which the invoice was due to be settled.
5.6 Without prejudice to any other rights we may have, if you fail to settle an invoice by the due date we shall be entitled to refuse the further performance of our obligations and to suspend performance of the Programme, without incurring any liability to you for any loss caused by such delay or cancellation.
5.7 Any interest charges, surcharges of other costs or losses incurred by us to third parties as a result of your late payment will be invoiced to you and will be payable immediately.
5.8 You shall not be entitled to withhold payment of, or make any deduction from the Fee notwithstanding any dispute with us in respect of an invoice or any other matter.
6 Terms of Business with Third Parties
6.1 Our contracts with third parties in connection with the Programme are made in accordance with standard or individual conditions and contracts (“the Contracts”). You accept, and agree to comply with the terms of such Contracts and acknowledge that work required by you can only be carried out within, and subject to the provisions of the Contracts, including, without limitation the provisions relating to cancellations, omissions and deadlines.
7 Copyright and other rights
7.1 All rights in the artwork, copy and all other work created by us for you including ownership of tangible property and all intellectual property rights (“the Rights”) and all physical material purchased by us for you (“the Property”) shall belong to us, subject to clause 7.2. This does not apply to “stock” photographs obtained from news or photographic agencies, nor to photographic or film negatives.
7.2 Rights in materials or services provided by third parties for your benefit will belong to those third parties unless specifically assigned to us or you. At your written request, we shall endeavour to obtain, if available, an assignment of such rights from a third party provided that you pay all costs and expenses involved.
7.3 Subject to clauses 7.4 and 7.5, at the end of the Programme, provided that you have complied with all your obligations in these Terms (and in particular regarding payment of the Fee), we will, if you request, assign the Property and Rights to you provided that you will continue to permit us to use the Rights and Property for our own marketing purposes.
7.4 We shall retain all Rights and Property in any material contained in any presentation made in competition with any other consultancy in the event of our presentation being unsuccessful.
7.5 Upon termination of these Terms or on completion of the Programme, unused or unpublished plans, materials and ideas prepared or commissioned by us shall remain our property and shall not be used by you thereafter, regardless of whether or not the physical embodiment of any creative work is in your possession, in the form of copy, artwork, plates, films or otherwise.
7.6 We will keep in our care the Property, but in the absence of negligence on our part, we will not be liable for any unauthorised use of, damage to, or destruction of such property. In addition we will not be required to recover typesetting, colour separations, printing plates, and the like from media and suppliers once we have parted with them. We shall be entitled to destroy all such material left in our custody after 1 year, or after giving notice to you at such earlier time as we think reasonable.
8 Your Property
8.1 Any property that you make available to us for any purpose in connection with the Programme shall be and shall remain at all times at your risk. You will be responsible for your property when in the hands of the media, printers, production companies or otherwise. In the absence of negligence on our part we shall have no liability for the loss of, damage to or misuse of such property.
9 Legal Liability and other claims
9.1 We shall not be liable for any delay in, or omission of, publication or transmission, or any error or claim arising from the Programme or any material prepared, provided or commissioned (or which ought to have been prepared, provided or commissioned) which is not due solely to our negligence and subject to clause .
9.2 In any event, the maximum aggregate extent of our liability in respect of any claims or demands brought by you against us under these Terms shall be limited to a sum equal to the total Fee paid to us in respect of the services in relation to which the claim or demand is made.
9.3 You will indemnify us and our officers, directors, agents and employees against any loss, claims, damages, liabilities and expenses we may incur as the result of:-
9.3.1 any material prepared or commissioned for you by us and approved by you before publication;
9.3.2 any cancellation of, or amendment to, the Programme by you;
9.3.3 the use of your property; and
9.3.4 the acts and omissions of you and your employees and agents in the performance of your obligations under these Terms.
9.4 We shall not be liable to you for any act or omission to the extent that such act or omission arises from any event outside our reasonable control. If we are prevented from fulfilling our obligations under these Terms by reason of any event outside our reasonable control, we shall not be liable for any breach of contract and shall be entitled without any liability to you to extend the time or times for delivery of the services or for performing our obligations under these Terms by a period at least equivalent to that during which such delivery or performance has been prevented by such event.
10 Termination Provisions
10.1 These Terms shall terminate automatically upon completion of the Programme and payment in full having been made by you in accordance with these Terms. The Terms may also be terminated by either party giving the other not less than 8 weeks notice in writing.
10.2 Our respective rights, duties and responsibilities shall continue in full force during the period of notice.
10.3 We shall be entitled to receive the Fee during the period of notice. If the Fee cannot be agreed then the amount payable will be calculated on the basis of the average Fee paid during the four months, or such shorter period as is applicable, prior to the date of termination. In addition we will continue to invoice you for all other materials and services authorised by you which we provide and perform.
10.4 On termination:-
10.4.1 you shall remain liable for all sums due to us and any third parties under these Terms up to and including any notice period;
10.4.2 the termination shall not affect our respective rights or remedies in respect of any antecedent breach of these Terms; and
10.4.3 the termination shall not affect any provisions in these Terms which are expressed to remain in full force and effect notwithstanding such termination.
11 Confidential Information
11.1 In this clause, “Confidential Information” means all and any information concerning our or your business or finances, including (without limitation) all recommendations, concepts and materials shown by us to you.
11.2 Subject to clause 11.4, you shall not at any time use or disclose without our permission any Confidential Information relating to us or our business or disclose the contents of or make any documents supplied by us in connection with the Programme available to any third party, either in whole or in part, or use them for any purposes other than those for which they were handed over, or make any copies of such documents.
11.3 Subject to clause 11.4, we acknowledge a duty not at any time to disclose without your permission any Confidential Information relating to you or your business which is acquired as a result of studies or surveys by us or otherwise.
11.4 The provisions of clause 11.2 and 11.3 do not apply to information already in the public domain or information which comes into the public domain other than as a result of a breach of these Terms or which we or you are required to disclose pursuant to any statute, regulation or order of any court or regulatory authority.
11.5 You acknowledge our right to use as we see fit any general promotional intelligence gained about your products, services or market which we gain in the course of the Programme.
12 Restrictive Covenant
12.1 You agree that you will not endeavour to entice away from us any employee of ours that has worked on the Programme, for a period of 1 year after the end of the Programme.
13 Standards
13.1 You agree to provide us with accurate information regarding your products, goods and services and to check all material prepared by us for accuracy. You will inform us promptly if any work prepared by us is inaccurate, misleading or false or likely to give rise to any civil claim or to contravene any legislation, court order or undertakings given by you.
14 General
14.1 These Terms represent the entire agreement and understanding between us and you (and therefore supersede any previous agreement or arrangements).
14.2 The waiver by us of any breach of these Terms shall not prevent their subsequent enforcement and shall not be deemed to be a waiver of any subsequent breach.
14.3 We reserve the right to use the services of people other than our own employees and executives when carrying out the Programme.
14.4 Any notice required to be given under these Terms shall be in writing and delivered personally or sent by first class post to our or your registered office for the time being as the case may be.
14.5 These Terms shall be governed by and construed in accordance with English law and you and we submit to the exclusive jurisdiction of the English courts.
15 Travel
15.1 In the case where the projects require travelling outside Aeron Branding London, Aeron Branding Personnel travel is billed at actual business class airfare and hotel accommodation expenses according to the Aeron Branding Per diem – currently Euro 350 per person per day in Europe and US Dollars 250 in the Middle East, US Dollars 450 per person in Dubai (other geographies or instances where the location costs exceed the per diem allocation will be treated on a case by case basis).
15.2 Non-commissionable items: Packing, postage, freight charges and custom clearance are billed at cost.
